c i 



CONCLUDING ARGUMENT 



OP 



Hon. GEO. W. PASCHAL, 

ft 

BEFORE THE 



JUDICIARY COMMITTEE OF THE HOUSE OF REPRESENTATIVES. 



ON THE 



Twenty-Fifth and Twenty-Seventh days of April, 1870, 



IN THE 



I CASE OF WILLIAM McGARRAHAN, 



[PANOOHE GRANDE, 



With an Index. 



WASHINGTON CITY: 

M'GILL <* WITHBROW, PRINTERS AND 8TEREOTX PER8. 

1870. 



M ^rP36 



CONCLUDING ARGUMENT 



OF 



HON. GEORGE W. PASCHAL. 



BEFOEE THE 



JUDICIARY COMMITTEE OF THE HOUSE OF REPRESENTATIVES, 

ON THE 

2MK and 27th April, 1870, 

IN THE 

CASE OF WILLIAM McGARRAHAN. 



Washington, 25th April, 1870. 
Mr. Paschal said : 

Gentlemen of the Committee: The second clause of the third 
section of the 4th article of the Constitution reads thus: 

"The Congress shall have power to dispose of and make all needful rules and 
regulations respecting the territory or other property belonging to the United 
States." 

It is to your broad and unlimited power over the public do- 
main of the United States, that the applicant appeals for that 
justice which he has failed to find from the other tribunals to 
which you have committed a share of that power, in enforcing 
the regulations which you have prescribed. And, with the 
weight of what our opponents are pleased to call four judicial 
decisions by the court of last resort against him, he would 
feel that it was a vain task if he did not know that he came 
with a case which presents those peculiar hardships, which 
seem to bring it within the rule laid down by the advocate who 
concluded the argument for the New Idria Mining Company. 

And for myself, gentlemen, I wish to say that, while I as a 
lawyer, who have given thirty-five years of my life to the pro- 



^ 






fession, am accustomed to pay all proper respect to the prece- 
dents made by the highest judiciary of our country, and am 
willing to pick up and pocket the errors of that august tribu- 
nal which sits in the middle of this Capitol, yet I am not 
accustomed to yield absolute obedience in all cases to the 
principles which fall from the judges who sit there. I neither 
believe in the infallibility of the Pope or the court. I re- 
member, as you remember, how in the construction of that 
very section which confers upon Congress, whose Judiciary 
Committee you are, power to make needful rules and regula- 
tions respecting the territory and other property of the United 
States, that tribunal fell into an egregious error, which has 
cost us rivers of blood and mountains of debt. 

It was in construing that section that it was claimed, that 
the " territory" here described meant that alone which was con- 
ceded to the Confederation by Virginia, prior to the adoption 
of the constitution, and that it left loose and subject to some 
indefinite notions the vast possessions acquired from Georgia, 
Spain, France, and Mexico ; that there was something owing 
to that omission which enabled them to proclaim from their 
high place, that a man born and reared within one of the States 
of the Union, possessing ordinary intelligence, and having 
once tasted the sweets of freedom, was not a citizen, and that 
Congress, with its enlarged power of naturalization, had no 
power to make him such; that he was something a little lower 
than a monkey, upon whom could be conferred no power as 
"one of the people of the United States," as " a citizen" en- 
titled to maintain an action, but who was only known when it 
was necessary to count him to make up an unequal represent- 
ation, or to catch him and deliver him up if he had sought to 
escape from the servitude to which he was born ; and that in 
regard to the public domain there was something of a charac- 
ter, in that kind of property at least, which put it beyond 
your power to declare who should reside there, what should be 
the laws there, or what regulations the squatters should have, 
except to live there and inhabit there, with full power to ex- 
clude every other species of property, but not to interfere 
with the negro, until some morning or night some convention, 
called no matter how or where, should proclaim in favor of 
slavery, and that then, and not until then, they might deter- 
mine the status of the black man, and knocking at the doors 
of Congress for admission into the Union, you must admit 
them with a slave constitution, or it would be a casus belli. 

I do not think I mistake the obiter dicta proclaimed in that 
opinion in the Dred Scott case; and I do not think that I 



to io 






3 

overrate its consequences when I say that it became the tocsin 
of alarm. I do not wonder that from its loose dicta Toombs 
should proclaim, in his place, that he expected to call his slave 
roll on Bunker Hill. I do not wonder that my southern breth- 
ren, trying to follow these loose dicta relative to their rights 
in the territories and the protection of slavery, undertook to 
dissolve the Union, flew to arms, and involved our country in 
a civil war such as the world had never seen. 

I do not believe I mistake history when I say that the vati- 
cinations uttered from that bench, outside of anything in the 
record, led to all those dire consequences. And I assert that 
in the case of Gomez there have been errors equally flagrant, 
equally obiter dicta, equally unwarranted, equally without 
defense, announced as obiter dicta, and they are as hard to 
defend and maintain as is the much-abused Dred Scott de- 
cision. They are in a few words: first, the assertion that 
that body, if it suspects or believes that, in the rendering of 
a judgment against the United States, an inferior court may 
have been misled by fraud or cheated by the failure of a 
United States district attorney to do his duty, it may assume 
original jurisdiction, while it is confined by the Constitution 
and the laws to appellate jurisdiction alone; and that in the 
exercise of that original jurisdiction, twelve months after it 
had pronounced its decision, it can recall that decision be- 
cause of a fraud which was the subject of original jurisdiction 
only; and in recalling that decision it may undertake to 
brand with its displeasure, at least, not only the actors in 
the court below, but the man who had observed the most emi- 
nent propriety in his effort to bring the judgment before that 
tribunal ; and that that court can follow it up by saying that the 
eternal Calendar is wrong, and that five and-a-half years mean 
less than five years; that an appeal was not had, while the 
record proves that an appeal was had; that an appeal was 
afterwards had, when the record shows that the judge who 
once ordered it afterwards annulled it; that an order made 
five years after the appeal cannot be annulled by that judge 
who did annul it; and that a thing which had no existence 
shall be held to have an existence, and that it can decide ex 
necessitate rei, as expressed in the opinion, that if it did not 
do these things, a judgment would stand which it was not 
prepared to sanction, thus bringing a political question into 
the consideration of a mere judicial question; and that when 
it doubts the validity of a decree that was made, it will hear 
counsel about it, and afterwards resolve that doubt by saying 
that although fraudulent and void, yet in form it is sufficient 



4 

to enable the court to take jurisdiction and reverse and dis- 
miss the case. And were I disposed to fall down and worship 
as oracular all the wisdom which falls from that learned bench 
just now, I should be as the country is, at a loss who to fol- 
low upon the legal-tender question. I intend no disrespect to 
the court or the learned judges, when I say that they are as 
liable to err as any other branch of the public service; that 
their decisions and opinions are as open to public discussion 
as those of any other department of the Government; and in 
cases where the United States are a party, and particularly 
where they only exercise such political power as has been con- 
ferred upon them, claimants against whom they have erred 
have the right to go to the fountain of power in such cases, 
and to ask for justice, notwithstanding such adverse rul- 
ings. 

Mr. Evarts stated that, in such an appeal as this, we can- 
not expect to obtain relief from this body, unless we can show 
some case of hardship, some mistake of law, some error of the 
other tribunals in determining our right. Well, I have but 
glanced at these cases of hardship, and I will now endeavor 
to proceed as rapidly as I can with the history of the right. 

The facts of the case have been so fully discussed that I 
shall only notice them incidentally. And here let me take the 
opportunity to say that, notwithstanding some rather illiberal 
remarks leveled at my young associate, I know the painful 
anxiety with which he followed every phase of the record; I 
know his ardent desire to misstate nothing, to add nothing to, 
or aught set down in malice, but to give you the truth of the 
history as it was; and I undertake to say, that whoever shall 
write out a report for us or against us, (if we should be so 
unfortunate,) when he comes to deal with these facts, will find 
himself unable to depart from them as Mr. Shaw gave them 
to you. I will proceed at once to discuss the legal points 
which appear to me material. 

I. We are asked why we come to Congress. 

We come to Congress because it alone has power to make 
all needful rules and regulations respecting the territory and 
other property of the United States; because it recognized 
and caused to be prosecuted the war against Mexico, and ac- 
cepted the terms of peace, and appropriated the money pro- 
vided to be paid in the treaty of Hidalgo; because, as the 
successor to Mexico, it recognized the conquest, and exercis- 
ing the powers of the new sovereignty over the soil of Cali- 
fornia, it assumed what the law of nations (which is founded 
in the highest Christian morality) and the treaty imposed, the 



fulfillment of all the obligations of Mexico to the inhabitants. 
Now to the treaty : 

" In the said territories property of every kind now belonging to Mexicans 
not established there shall be inviolably respected. The present owners, the 
heirs of these, and all Mexicans who may hereafter acquire said property by 
contract, shall enjoy, with respect to it. guaranties equally ample as if the same 
belonged to citizens of the United States." (Article VIII, 9 Stats, at Large, p. 
129.) 

Compare this for a moment with our treaties in regard to 
Louisiana and Florida, for these the act of 1851 presently 
recognizes as the foundation of precedents. 

" Article III. The inhabitants of the ceded territory shall be incorporated 
in the Union of the United States; * * and in the meantime they shall be 
maintained and protected in the free enjoyment of their liberty, property, and 
the religion which they profess." (Louisiana treaty, 8 Stats, at Large, p. 202.) 

Our next acquisition was that of Florida, in 1819. In the 
eighth article of this treaty, we find this more positive guar- 
anty : 

"Article VIII. All the grants of lands made before the 24th January, 1818, 
by his Catholic Majesty, or by his lawful authorities, in the said territories ceded 
by his majesty to the United States, shall be ratified and confirmed to the per- 
sons in possession of the lands, to the same extent that the same grants would be 
valid if the territories had remained under the dominion of his Catholic Ma- 
jesty." 

You will thus see that the treaty of Hidalgo is more gene- 
ral and comprehensive in its terms than either of those which 
preceded it. It includes property of every kind, which is 
sufficiently comprehensive to embrace every species of acquisi- 
tion, real, personal, and mixed, and every right and claim 
against individuals or the government. The guaranty is not 
only to the " present owners," but to all persons who may 
acquire the same by contract. How this inchoate title was 
property, protected by inviolable law under the Mexican sys- 
tem, we shall hereafter show from the colonization law. 

The nation having acquired this territory, subject to the 
claim of the inhabitants to property therein, Congress intended 
to follow the regulations adopted in regard to Louisiana and 
Florida, and passed the act of 1851. A board was organized, 
and a rule of action prescribed to the commissioners: 

" That the commissioners herein provided for, and the district and supreme 
courts, in deciding on the validity of any claim brought before them under the 
provisions of this act, shall be governed by the treaty of Guadalupe Hidalgo, 
the law of nations, the laws, usages, and customs of the Government from which 
the claim is derived, the principles of equity, and the decisions of the Supreme 
Court of the United States, so far as they are applicable." 

Of course having reference to the decisions of the Supreme 
Court in regard to treaties of like character. For, gentlemen, 



6 

this had been a nation of mighty growth. When the Union 
was formed it was limited to thirteen States. In the revolu- 
tions that followed, growing out of the success of the colonies, 
France took the initiative in the struggle for liberty. The 
events of the French revolution I will not depict. There 
sprang up a man in the fullness of time equal to the occasion ; 
he dealt with states and kingdoms as an auctioneer- deals with 
city lots ; he made new geography and new lines; he par- 
celled out new dominions in the old world ; and finding himself 
in the course of that struggle in possession of the mighty 
country on the Mississippi, which stayed our march, he took 
it or purchased it from Spain and ceded it to the United States, 
giving us the Mississippi valley and the vast possessions which 
extend, as we say, to Nootka sound. 

He exacted from the United States the protection of the 
citizens and the property of the inhabitants, whom he thus 
transferred from his mighty empire to our growing republic. 
At this day there would have been no man in Congress or out 
of Congress, on the bench or off the bench, who would have 
treated lightly the claim of one of those protected and trans- 
ferred inhabitants. Our fathers knew how to respect their 
rights, and they knew the necessity that existed to respect 
those rights. Hence the tribunals were always instructed to 
examine nothing with microscopic lenses, but to give to every 
claimant that which was justly his due, or rather that which, 
had Napoleon maintained the jurisdiction, it could reasonably 
be expected would have ripened into a title ; and in fulfillment 
of that general understanding you find Chief Justice Mar- 
shall, in the case of Henderson against Poindexter, 12 Whea- 
ton, 535, saying: 

" The law requires us to hear and decide according to the law of nations and 
the stipulations of the treaty ; * * * and it is the usage of all civilized 
nations of the world, when territory is ceded, to stipulate for the property of its 
inhabitants. An article to secure this object, so deservedly held sacred, in view 
of policy as well as of justice and humanity, is always required and is never 
refused." , 

Mr. Justice Baldwin, in United States vs. Mitchell, 9 Peters, 
734, says: 

" That the inhabitants, citizens, or subjects of a conquered or ceded country, 
territory, or province, retain all the rights of property which have not been 
taken from them by the orders of the conqueror or the laws of the sovereign 
who acquired it by cession, and remain under their former laws until they shall 
be changed." 

Chief Justice Marshall, in the case of Juan Perchman, (7 
Peters,) uses this language: 

"It may be worthy of remark that it is very unusual, even in cases of con- 



quest, for the conqueror to do more than to displace the sovereign and assume 
dominion of the country. The modern usage of nations, which has become law, 
would be violated, that sense of justice and right which is acknowledged and 
felt by the civilized world would be outraged, if private property should be gen- 
erally confiscated and private rights annulled. The people change their alle- 
giance ; their relations to each other and their rights of property remain undis- 
turbed." 

The last case decided by the Supreme Court of the United 
States goes to the very verge of extreme political liberality, 
and entirely overrules every principle of strictness which has 
sometimes been applied in the California cases. I allude to 
the case of The United States vs. Rocha, decided at the pres- 
ent term. (9 Wallace, — .) 

In that case the party in possession had solicited the lands, 
first of the Ayuntamie'nto of Los Angeles, who approved it, and 
afterwards of the Governor, in the usual form. The concession 
or approval only was indorsed, referring the case for report. 
That report ascertained that the land might be within the exidos 
of a pueblos, or town-common claim, as that claim was being 
urged for sixteen leagues instead of four leagues of commons, 
to which each town was entitled under the colonization law. 
Upon this report, the governor refused to make the grant 
until it could be ascertained whether the diseno of the appli- 
cant fell within the exidos, or town common, or not. Thus 
stood the matter*" provisionally" at the date of the revolution. 
The surveyor general only confirmed the pueblos or exidos 
grant to the extent of four leagues. And when these came to 
be surveyed, it was found that the Eocha claim fell without 
the town common. Now, as his application for a grant had 
been rejected or suspended because of an accident or mistake 
of law, it was held that it was yet "property," or an equity 
against the conscience of the body politic, which entitled him 
to a grant, and the claim was confirmed. 

The learned judge reviewed the cases, and emphatically 
reiterated the principle, that the true inquiry should always 
be, would the Government to which we have succeeded prob- 
ably have finished the title, had not the conquest taken place? 
And that to determine this, the court must look to the inci- 
pient steps which had been taken, and from them determine 
whether there was any motive or legal reason why the claim 
would have been rejected. The opinion of Mr. Justice Nel- 
son concludes thus : 

" The exidos were not ascertained during the existence of the Mexican Gov- 
ernment, as the disturbances broke out soon after this grant, which resulted 
in war with this country and the cession of the lands. Since the peace, the 
limits belonging to the city have been defined under the direction of the sur- 
veyor general of the United States, and the premises in question are not included 



8 

within them. If this had taken place under the former government, it cannot 
we think, be doubted but that under the Mexican laws and usages this title 
would have become perfect, and hence under the treaty and act of Congress it 
wast be so held. b 

All California lawyers agree, that the liberal application of 
this rule would have saved to the Mexicans many grants, which 
have been virtually confiscated because of the fierce assaults 
of interveners and squatters. 

Let us apply the Gomez case to these just principles. He 
was a distinguished citizen, who had served his country in the 
navy and in many responsible civil positions. He was the 
favorite of the governor, who had lost his power by one of the 
civil revolutions, so common in that country; he had solicited 
a grant in a country then occupied by hostile Indians; he 
had filed his diseno, obtained the concession, "or approval of 
the governor," and it had passed to the Secretary of State, who 
ordered the usual report; that report had been made in favor of 
the applicant, and that the land was vacant. The petition called 
for three boundaries, proved to exist, and the diseno showed 
the fourth. The archives show all this. Let us admit, for 
the sake of the argument, that from carelessness, oversight, 
or accident, the governor did not do the final act, which would 
have referred the grant to the departmental assembly; and 
that, in this state, the war which grew out of the annexation 
of Texas (which gave to us the colonization system and the 
vast public domain of that empire, and the golden fields of 
the Siedra and the Pacific) came, with all its dire conse- 
quences, to the Mexican nation; whereupon Gomez, always 
a patriot, went to the front to do battle against the invader. 
And let us here suppose that the invaders had been driven 
back: Fremont from the Pacific; Scott from the halls of the 
Montezumas, and Taylor from Saltillo; and peace had been 
concluded with the dictator, allowing Santa Ana to retain 
the utmost of the Mexican possessions, including the very 
country which Houston had snatched from him at San Ja- 
cinto. 

Then let us suppose that Gomez had approached his tri- 
umphant government and pointed to the "unfinished expedi- 
ente, as Hopkins in his ignorance calls them, and had asked 
that his title be finished; that the final act should be issued 
and he put in possession of the land. Think you that he 
would have been turned away upon the pitiful plea, "Why sir 
you have never had a survey and juridical possession; you 
ought to have occupied while you were fighting i n the front- 
you wanted to devote yourself to agriculture^and this land 



9 

is hardly fit for it ; you say you have lost your testimonio, but 
that is your misfortune. Here is an archive which proved that 
it existed, but there is no note of it upon Ximeno's Index, 
and the fact is, this land may become more valuable to others, 
who are richer than you. True, we have confirmed the Arias 
grant called for in your petition, and abutting on you in 
your expediente, when they had lost their grant altogether, 
and they never had possession. (See United States v. McDou- 
gal, February, 1863, Real de los Aguilas.) They had none 
but parol evidence; nevertheless some invader left behind 
wants your land." These are the precise arguments which are 
now applied to despoil the conquerors, not by those who con- 
quered, but by the robbers, who ever hang in the rear of the 
army, and, in the name of the government which they dis- 
grace, commit the pillage for which the brave general would 
hang them could he catch them. And yet the sacred law of 
nations, which is founded upon the highest notions of Christi- 
anity, tells this Congress that the very same rights which 
Mexico, victorious, would have conceded to Gomez as one of 
the victors, the United States must concede to him as one of 
their conquered and adopted citizens. That right is to treat 
him with justice, and to make good to him the incipient pro- 
prietorship which he had acquired from his country, which 
for the sake of peace receded from its boundaries. 

II. I might multiply references to those cases, but it is 
useless, since Mr. Evarts did not deny the general principle. 
As practically illustrative of it, I call the attention of the 
committee to Paschal's Annotated Digest, p. 40, note 150, et 
sequitur : 

"The survey and order of survey made under the colonization laws were not 
proprio vigore titles, which were entitled to judicial standing in themselves — 
that is, not ' evidence of a right to land that has been recognized by the laws,' 
as referred to in the statute of limitations, unless the holder of such order of 
survey presented the same to some board of land commissioners, and made such 
proof as was required by the general land law of 1837. (Jones v. Menard, 
1 Tex., 771.) In the above case, Judge Lipscomb reviewed and affirmed the 
doctrine in Le Bois v. Brammel, (4 How., 449,) which requires the new gov- 
ernment to recognize inchoate titles before they have judicial standing. It is a 
political power. The orders of survey protected by this clause of the Constitu- 
tion were those alone issued by the commissioners of colonies to colonists and 
settlers for their head-right claims. (Trimble v. Smithers, 1 Tex., 790.) In 
this case Chief Justice Hemphill reviews the cases, and asserts the power of the 
new government to have abrogated all the laws of the former government, and 
the rights secured by them, but quotes Perchman's case (7 Pet.) to show that 
such a course would have been inconsistent with the rules of modern civiliza- 
tion. And the chief justice added: 'It belongs to the legislative department 
to give construction and effect to the provisions of the Constitution regulating 
the distribution of the public domain. It is placed within its control by the 
express provisions of that instrument, and it appertains not to the judiciary to 






10 

determine authoritatively whether the provisions are susceptible of a different 
construction, or to attempt, in any mode not sanctioned by law, the survey 
and distribution of the public lands of the country.' (Trimble v. Smithers, 
1 Tex., 802.) 

[I should say here that there is a provision in the constitu- 
tion of Texas, copied in words from your own, that the con- 
gress shall have power to make needful rules and regulations 
in respect to the public lands of the country.] 

"As analogous in principle, the chief justice cited Smith v. The United States, 
10 Pet., 332; Buyck v. The United States, 15 Pet., 215; O'Hara v. The Same, 
Id., 275; United States v. Delespine, Id., 319; United States v. Miranda, 16 
Pet., 153. And he adds: 'There are later decisions of this high tribunal, in 
which they assert, in emphatic terms, that no standing can be given in 
courts of justice to inchoate claims under the former government of Louisiana 
and Florida until recognized by the political authority of the United States.' 
He cites Choteau v. Eckhart, 2 How., 344; Byrd v. Montgomery, 6 Mo., 514; 
Mackay v. Dillon, 7 Mo., 10; Barry v. Gamble, 3 How., 56; Le Bois v. Bram- 
mel, 4 How., 459; The United States v. Lawton, 5 How., 28. And see Me- 
nard's Heirs v. Massey, 8 How., 293 ; Stoddard v. Chambers, 2 How., 285; Mills 
v. Stoddard, 8 How., 345. It is no longer an open question that an imperfect 
title, emanating from a former, and unrecognized by the existing government, 
forms no foundation for an action. (Paschal v. Perez, 7 Tex., 366.) 

"An imperfect title is one which requires a further exercise of the granting 
power to pass the fee in the lands ; which does not convey full and absolute 
dominion, not only against all private persons, but as against the government; 
and which may, consequently, be affirmed or disavowed by the political or 
granting authority. (Id., 367; Hancock v. McKinney, 7 Tex., 449.) 

"But the perfect titles, and even those subject to be forfeited for the non-per- 
formance of conditions subsequent, did not need the political confirmation to 
give them standing. (McMullen v. Hodge, 5 Tex., 34; Hancock v. McKinney, 
already cited; Trevino v. Fernandez, 13 Tex., 657.) 

"We have held in numerous cases, from Reily, Assignee v. The Board of 
Land Commissioners, (Dallam, 381,) decided in 1841, to Smith, Assignee v. The 
State, (ante,) that the recognition of imperfect claims to lands, originating under 
a former government, depends upon the will of the existing sovereignty; that 
this recognition appertains to the political authorities, and does not and cannot, 
in the first place, emanate from the courts of justice. And until there be some 
such act of recognition, such claims are not the proper subjects of judicial 
cognizance. (Jones v. Borden, 5 Tex., 412.) 

" It would have been in the power of the convention to take away individual 
rights, but such an intention would never be presumed ; and to give effect to 
a design so unjust and unreasonable would require the most direct, explicit, 
affirmative declaration of such intent." (McMullen v. Hodge, 5 Tex., 75.) 

I invite the particular attention of the committee to three 
of the cases here cited. I mean the cases of McMullen v. 
Hodges, 5 Tex., 34; Paschal v. Perez, 7 Tex., 366; and Han- 
cock v. McKinney, 7 Tex., 449. I repeat a hasty summary 
of each. 

The first was a title which had been made to the children 
of the Mission of the San Jose, a body of Indians. In form 
it seemed to be perfect. I had the honor to appear against 
that grant, and to trace with pleasure the history of Texas, 



11 

from the first footing gained by the missionaries on San An- 
tonio river in 1717, down to that day, and to read there that 
when these incipient titles were being created, these Indians 
at San Antonio, three hundred miles away from Nacogdoches, 
grew the corn and fed the inhabitants there, carrying the 
grain that distance upon asses. I sought to maintain that it 
was one of those titles which the political power did not 
recognize. The case, however, turned on another point. The 
judge denounced the extreme revolutionary doctrines; he 
thought I had gone too far in regard to the law of nations, 
and he administered the rebuke that, although Texas, by its 
revolution of 1836, succeeded to all the public domain of the 
country, and had the power by the convention to have annulled 
pre-existing rights, yet it did not do so, except as to those 
which had been granted contrary to law. He said that that 
which was perfect needed nothing further to be done by the 
political power, and that judicial standing and action could 
be maintained without any confirmation by the political au- 
thorities, while that which was inchoate and imperfect must 
be ratified and confirmed by boards created for the purpose. 

The case of Paschal against Perez, (7 Texas,) referred to 
by me, was on behalf of a brother of mine, who went to that 
country in the revolution of 1836; he was wounded and shed 
his blood for the cause. He located his head-right upon an 
ancient Spanish grant which had been issued to Perez in 1798. 
It was a title where the petition had been made, the local 
governor had given the concession, and the surveyor had made 
the survey, and delivered to the party juridical possession. 
All that had been done; but it had not received the confirma- 
tion of the intendente at San Luis Potosi. The decision was 
that it was an imperfect title, and that until the grant received 
that confirmation which it should have received at San Luis 
Potosi, the claimant had no standing in a court of justice. 
The case is valuable as showing you how, when the grant had 
been lost, (as was the case there,) secondary evidence might 
be resorted to, to prove the previous existence of the title. 
The doctrine being thus formally established in regard to 
Spanish grants, that the imperfect titles needed this confirma- 
tion and that perfect titles did not, it became a mooted ques- 
tion as to what was perfect and what was not perfect. That 
question was set afloat and discussed in speeches, pamphlets, 
writings, newspapers, and every other way, for two or three 
years. Volumes of learning were issued on it before the coun- 
try. The court in this matter of Hancock against McKinney, 
(7 Texas, 449) reviewed all of the previous decisions of the Su- 



12 

preme Court of the United States giving a definition as to what 
was a perfect and what an imperfect title, and it was held that 
when the party solicited the governor and obtained a concession, 
(just as in the record in the Gomez expediente,) and when 
that concession was afterwards located and a survey made 
(for that was the order in Texas, though never in California,) 
by a surveyor, and when the commissioner of the colony, the 
political chief or the Alcalde, or others to whom was given the 
granting power, executed the grant, it became final and was a 
perfect title, and no juridical possession was necessary. All 
rested upon the paper title. And the decision goes further, 
and decides that the conditions attached to the grant, under 
the State, not the national law, were conditions subsequent, of 
which no locator under the statute of Texas, no pre-emptor, 
or those claiming title subsequently, could take advantage; 
but that it belonged to the sovereign of the soil to exact the 
conditions and declare the forfeiture, if it saw proper ; that it 
was not a limitation in law, to become void if the thing was 
not done, but a condition in deed, which might be exacted or 
not. 

And, gentlemen, although I might regret some things in the 
political history of my country, I am proud that in regard to 
this case I speak from a State and for a State which has always 
observed the most liberal course towards the weak inhabitants 
which it conquered. 

[Mr. Shaw, at this point of the argument, called the atten- 
tion of the committee to the record of the Yorbo Case, in vol. 
4 of the Supreme Court records, for the December term, 1863, 
showing that the application for the Yorbo grant was made on 
the 18th of October, 1845, instead of 1843, as the copy offered 
by Mr. Wilson read, while that for the Gomez grant was made 
in March, 1844. This was in contradiction of Mr. Wilson's 
statement to the effect that the Yorbo application was made 
in October, 1843. He called attention to the fact that in the 
Yorbo diseno, photographed by the New Idria Company, 
" 1845" was visible at the top of the first page, thus proving 
the date of the grant. 

Mr. Wilson. We furnished the certificate from the Gene- 
ral Land Office. 

Mr. Paschal. It was a misprision of the Commissioner. 

Mr. Wilson. I think not. 

Mr. Shaw. It is evidently a clerical error ; here is the 
original Spanish. 

Mr. Kellogg. Where did these copies come from ? 

Mr. Shaw. From the district court of California. It is 



13 

the record of the Supreme Court, and a statement of the true 
date from the Commissioner of the General Land Office. I 
interrupted now because the clerk of the Supreme Court is 
present with the Spanish copy and the translation used upon 
the trial of the cause ; and the clerk could not wait. 

Mr. Wilson. Here is the certificate upon which the patent 
issued, showing that the application was made in 1843. 

Mr. Shaw. The application was made on the 18th of Oc- 
tober, 1845. 

Mr. Peters. This is a material matter, and ought to be 
settled. 

Mr. Paschal. I hope the committee will examine this 
matter carefully. It is not in order to comment upon it now.] 

Mr. Paschal then resumed his argument, as follows: 

I was saying that I was proud to speak of a State, which, 
by its judicial proceedings and by its legislation, had observed 
the most liberal course towards the weak people whom it con- 
quered, and as to whom it had the right to entertain the deepest 
resentment. Thus in the act of November 8, 1850, creating the 
board of land commissioners for the purpose of investigating 
the titles to the country between the Nueces river and Rio 
Grande, it is declared by the 9th section : 

"That the said board shall make an abstract of every claim so filed, aDd the 
evidence adduced in support of, or against it, and shall accompany the same 
with a statement of their opinion of its genuineness and validity, and whether 
the same ought to be confirmed or rejected, having a due regard to the principles 
of justice, and to the laws, ordinances, rules, and customs of the government and 
authorized political authorities under which the claim originated; which reports, 
accompanied by the muniments of title, made previous to the session of the 
next legislature, shall be made to the governor in time to be submitted to the 
legislature at the commencement of the next session." (Paschal's Digest, art. 
4448.) 

And I pass you round, gentlemen, a few pages following 
this article, from that same volume, to show you the liberality 
with which Texas confirmed the grants for twenty millions 
of acres reported by these commissioners. Remember that 
this was in the country between the Rio Grande and the 
Neuces, the same which was stricken out of the treaty of Hi- 
dalgo; (Yorbo's Case, 1 Wallace;) that it was the disputed 
territory, where American blood was shed upon American soil; 
the same which you relinquished when you gave Texas ten 
millions of dollars for New Mexico, where the colonization 
system also prevailed. 

By striking out that country from the treaty of Hidalgo, 
there was imposed upon Texas the same obligations which the 
nation assumed in regard to California and the other territory 



14 

transferred by the treaty of Hidalgo. It became the duty of 
that State to do as your Congress did, to create a board of 
land commissioners and to examine the Spanish titles. The 
course was not to give to every speculator, barrator, main- 
tainor, intervenor and squatter, who might seek to challenge 
the petition of the old Spaniard or Mexican, an opportunity 
to intervene and to oppose, to cheat, to lie, and to swear. 
But the board was created and was commissioned to determine 
the right according to the law of nations, the laws, ordinances, 
and usages of the former government, and to say whether, if 
there had been no change of government, the title would have 
been confirmed or not. As you will see from the leaves which 
I have handed to you, the duties were more onerous than the 
duties of the like board in California. 

It was a country of repeated and successive revolutions. 
It had participated in that which had snatched Mexico from 
Spain, and the reason why you see some grants there so enor- 
mous, extending to forty and fifty leagues, is, that they were 
concessions from the crown of Castile, through subaltern 
officers, to the inhabitants. When these reports came to the 
legislature, as the California reports ought to have come to 
Congress, without any intervention of machinery, which would 
exhaust Stewart's large fortune before he could get his rights, 
the legislature looked into the report of the commissioners 
and the documents furnished, and if they seemed fair, (there 
was no question about the titles being perfect, for all admitted 
that they were not perfect,) that is, if they were such that, 
had the original sovereignty remained, they would have be- 
come perfect under the laws and usages of that country, they 
were confirmed; and, in one act, Texas conceded its rights to 
over twenty millions of acres of land. (Paschal's Dig., Arts. 
4440 to 4490.) And yet we are frequently pointed to the 
people of that country as not respecting the rights of others, 
as being cruel and blood-thirsty, as carrying pistols and 
Bowie-knives, redressing grievances on the spot, and never 
convicting anybody for outrages and murders. And because 
in our arrangement with the United States we only paid 
seventy-seven hundredths of our revolutionary debt, issued 
when it was worth one-tenth of its face, we are often pointed 
at by those who purchased dollar promises for cents, as being 
a set of scaling repudiators. But, have we been unjust to the 
ancient inhabitants ? You see how we have acted towards them. 
And, lest I forget it, I will here take the opportunity to pay 
my respects to the opening counsel on the other side, who went 
into a pretty general denunciation of the Mexican inhabitants 



15 

of California, alleging that they could be purchased and bribed 
to become perjurers and suborners of perjury. 

[Mr. Wilson. I not only alleged it, but I showed you where, 
in case after case, the Supreme Court of the United States 
declared that they were. 

Mr. Paschal. Yes; and with the land-sharks and the land- 
hunters, and the Forbeses and the Barrons, who mingled in some 
of those trials and received the like compliments of the same 
learned tribunal, I only wonder they had not shown more. I 
know something of the system of breaking down the charac- 
ters of men; I have seen it and felt it. There is not a Union 
man, from the Potomac to the Rio Grande river, who to-day, 
if it had not been for the measures which Congress has crea- 
ted to strengthen their hands, would not be disgraced as wit- 
nesses in the rebel courts, and called unworthy of belief, be- 
cause of the prejudice against them for being true to the flag 
of their country. And is it wonderful that in California, where 
men, who, like the Forbeses, and the Barrons, attempted to 
manufacture and procure titles which the Supreme Court of 
the United States denounced as forged, and who expended their 
millions in efforts to establish titles to quicksilver mines, (see 
the New Almaden Case,) is it wonderful, I say, that some of 
them should be found to bring censure upon the few and weak 
inhabitants who stood in the way, and were being despoiled 
and robbed of their property? I make no invidious compari- 
son against my race. Go open that closet of this Judiciary 
Committee, and take from it the three-bushel sack of land 
certificates and transfers procured by forgery, perjury, subor- 
nation of perjury, and crime. The damning evidences which 
I brought here upon the trial of a federal judge, (for dealing in 
these forgeries,) when you, sir, (alluding to Mr. Bingham,) had 
the honor to be on the committee, and see if, in all of them, 
there was one single title proved by a Mexican, while the vast 
quantity of twenty millions of acres was sworn through by the 
descendants of this Anglo-Saxon race. Take the reports of 
the committee in that case, the traveling boards of Texas, and 
the books which sum up the whole history of every land title in 
Texas; go through these evidences, and see if, with the induce- 
ment to prove head-rights, a stigma is ever put upon one of 
the Mexican race for having claimed a thing which was not 
his own. Ask any Texan if ever a tax collector at any time 
had to distrain for a tax on one of the Mexican inhabitants. 
Ask him if ever one of them was known to invade his neigh- 
bor's rights in regard to real property. And then tell me 
that the men who have come from England, from Germany, 



16 

from foreign countries, inspired with the insatiate thirst of 
gold, the same cursed spirit which caused Cortez and his fol- 
lowers to drench in blood the fairest land in the world, to slay 
the Aztecs by hundreds and by thousands, to deal in the 
most wanton cruelty, prompted by the thirst of gold, are com- 
paratively moral. Tell me what comparison you are to make 
between those who came armed with the bull of Alexander the 
Sixth and the descendants of those ancient Aztecs as to hon- 
esty, integrity, virtue, and the laws of natural rights ? I 
have lived there too long; I have known them too well. I 
have appreciated too highly the regiment of them who rallied 
around the Union standard raised by my young son in the 
late war, when the boasted race to which I belong was endeav- 
oring to destroy that Union, and to render odious your strug- 
gle for your country. He (alluding to Mr. Wilson) says he 
proved it ; but, as Sam Houston said once of Judge Oldham, 
"who endorses him, or the men by whom he proved it?" No, 
gentlemen, it will not do to determine human rights by the 
mere denunciations which these people make against men 
whom they are seeking to despoil. A country which seeks tp 
annex the whole continent must not assume that the descend- 
ants of the Castilians and the natives, who when Columbus 
discovered this country had made wonderful advancement in 
art, as gold refiners and as architects, aje worse than the 
aggressive races who have waged an unrelenting warfare upon 
the ancient inhabitants. Following the organic law of Mex- 
ico, we recognize as citizens all who are born within the juris- 
diction of the United States. We make no distinction on ac- 
count of race, color, or previous condition. Wherever we carry 
our eagles we invite all to a glorious equality as to political 
and civil rights. What hypocrites should we be if we reject 
all proof of rights by the men who have acquired and pre- 
served those rights through many a bloody revolution! Des- 
perate indeed must be the cause, and black the hearts who seek 
to despoil men upon the broad notion that a whole race is not 
to be trusted as witnesses.] 

III. When the gentleman asserted that if the memorialist 
had a title he would not be before Congress, if he meant that 
we had no proprio vigore title, which has judicial standing, he 
is right. And the same remark may be applied to any title 
ever issued by any government existing in that country prior 
to the conquest. Hear the Supreme Court of the United 
States : 

" It will be seen from the quotation we have made, that the 8th section em- 
br. uot only inchoate or equitable titles, but legal titles also, and requires 



17 

them all to undergo examination and be passed upon by the court. The object 
of this provision appears to be to place the title to lands in California upon a 
stable foundation, and to give the parties who possess them an opportunity of 
placing them on the records of the country in a manner and form that will pre- 
vent future controversy. In this respect it differs from the act of 1824, under 
which the claims in Louisiana and Florida were decided. The jurisdiction of 
the court in these cases was confined to inchoate equitable titles, which required 
some other act of the government to vest in the party the legal title or full 
ownership. If he claimed to have obtained from either of the former govern- 
ments a full and perfect title, he was left to assert it in the ordinary forms of 
law upon the documents under which he claimed. The court had no power to 
sanction or confirm it when proceeding under the act of 1824 or the subsequent 
laws extending its provisions." (Fremont vs. United States, 17 Howard, 553.) 

I pause here, gentlemen, for a moment, to invite your 
serious attention to the construction put upon this treaty of 
Guadalupe Hidalgo. There is not in the history of the 
world, from the conquest of Joshua down to the present day, 
not excluding the conquest of Cortez, anything like it. 
Joshua respected the houses and posessions of those whom he 
conquered; Cortez set aside houses and possessions to the 
Aztecs whom he let survive ; William the Conqueror ordered 
the survey of all England, and confiscated the rights of only 
a few of the barons. There was no pretense that the doom's- 
day book which he opened was opened by parties who could 
say to those whom William had conquered, "you shall," or 
"you shall not have your land." When we received the 
grant from Napoleon, we understood that the things which 
belonged to the crown were conceded, while the things which 
had become perfect in the hands of the inhabitants were to 
be respected. Their titles had judicial standing in the courts 
without any further action by the executive. So it was in re- 
gard to Florida ; so it was in Texas, which copied the example; 
but here, in the treaty of Hidalgo, you have it announced in 
the very first case, that a doom's-day book is open ; that there is 
not only to be a record of all titles, but that three men, com- 
missioned by the United States, shall pass upon those titles, 
and say whether they are good or not ; and not only that they 
shall pass upon them, but that there shall be an appeal in all 
cases (for that was the instruction of the Attorney General) 
to the district court, and that there the party must undergo 
the expense of proving his title against any and every man 
who saw proper to assert anything against it. That became 
the practice, and is now claimed to have been an honest 
practice. Where the claim prevailed against the United 
States, the instructions of Attorney General Cushing were, 
that an appeal was to be taken to the Supreme Court of the 
United States, and the claimant must follow his title to 
Washington. 

2 



18 

Is it wonderful that the Mexicans broke down? Is it won- 
derful that, when the vast treasures of gold were discovered 
in the bowels of the earth, these Mexicans became, in the 
estimation of the robbers, dishonest men? Is it "wonderful 
that every matter of disgrace should be thrown, not only upon 
the claimants, but upon their titles also, under such a system? 
It had its temptations. The commissioners or the attorney 
appointed to represent the United States might be open to 
bribery and corruption; the appeal might be compounded, in- 
stead of prosecuted, by the district attorney. When the case 
came here, the Attorney General held the absolute power over 
the rights of every claimant; he could prosecute or not prose- 
cute; he could docket and dismiss, if that course suited the 
views of the men who squatted upon the lands and wanted 
gold and were ready to use it; or he could prosecute, and 
by the power of his eloquence overcome any man's right. 
His vast influence was boasted here by counsel for the New 
Idria Mining Company, who said that Jeremiah Black never 
appeared in the Supreme Court in a case that he did not win. 
It may be true; I hope it is not; it is not creditable to any 
tribunal under heaven, that it should be said of it, that in 
two hundred cases a particular lawyer never took ground but 
to win: I hope and know it is a vain boast, and not true. I 
would not have the high respect for the tribunal that I do 
have if such a statement was true in regard to Demosthenes 
or Cicero, or the greatest lawyers who ever practiced in any 
tribunal of the world. 

IV. The law then was a hard law, and the judges who were 
appointed to administer it often felt it to be a hard law. Hence 
you find that the young man who went from one of the eastern 
States to California — Mr. Justice Field — uses this language in 
quoting an opinion from Judge Grier, pronounced in the case 
of the United States against Anguisola, 1 Wallace, 329: 

u To the objections urged by the appellants, and to all objections of a similar 
kind, the observations of Mr. Justice Grier in the case of the United States vs. 
Johnson, decided at the present term, are applicable. 'In taking objections to 
these Mexican grants,' says the learned justice, 'it ought to be remembered 
that the case is not brought here on a writ of error, with a bill of exceptions to 
the admission of every item of testimony offered and received below. Nor is it 
the duty of counsel representing the government to urge microscopic objections 
against an honest claimant, and urge the forfeiture of his property for some 
oversight of the commissioners in not requiring proof according to the rules of 
the common law.' (lWall., 329.) To these observations we will only add, that 
the United States have never sought by their legislation to evade the obliga- 
tion devolved upon them by the treaty of Guadalupe Hidalgo, or to discharge 
it in a narrow or illiberal manner. 'They have directed their tribunals,' con- 
tinues Mr. Justice Field, ' in passing upon the rights of the inhabitants, to be 
governed by the stipulations of the treaty, the law of nations, the laws, usages, 



19 

and customs of the former government, the principles of equity, and the decisions 
of the Supreme Court as far as they are applicable.' They have not desired 
the tribunals to conduct their investigations as if the rights of the inhabitants 
to the property they claim depended upon the nicest observance of every le?al 
formality. They have desired to act as a great nation, not seeking in extend- 
ing their authority over the ceded country to enforce forfeitures, but to afford 
protection and security to all just rights which could have been claimed from 
the government they superseded." (United States vs. Anguisola, 1 Wallace, 35i>.) 

And upon the question of the credibility of the documents 
and the oral evidence, Mr. Justice Field contiuues: 

"When there is any just suspicion of fraud or forgery, the defense should be 
made below, and the evidence to support the charge should appear on the record. 
If testimony of witnesses is alleged to be unworthy of belief, the record should 
show some reason to justify the court in rejecting it. The former opinions of 
this court may be referred to in questions of law, but cannot be quoted as evidence 
of the character of living witnesses." (Id., 329.) 

What a commentary is that upon the hunting up of scraps 
of some slighting remark, that some gentleman, clothed in a 
gown and wearing a wig, may have made in respect to the 
evidence of a witness, not as it appeared to him in that par- 
ticular case, but in some other case, as a means of testing his 
credibility! What a rule of morality would it be to depart 
from Mr. Justice Field's rule, and to have an appellate tribunal 
sitting in judgment, to say, "here, it seems that your case 
below was proved by A. and B., or by John Doe and Richard 
Roe, and we know, judicially, that that same A. and B. and 
that same John Doe and Richard Roe are the witnesses who, 
some years ago, swore in a manner that we did not believe, 
and therefore they are unworthy of credit?" Yet that is pre- 
cisely the argument applied by gentlemen to witnesses against 
whose evidence there was no objection made in the court be- 
low. It is an insult to legal proceedings in any tribunal under 
heaven. Appellate courts have no jurisdiction of that sort, 
and they depart from their duty whenever they assume that 
they have. 

V. And before I leave this case let me answer, from the 
same judge, the objection that a perfect title was necessary, 
even to the approval of the departmental assembly. 

"We have frequently decided," said he, " that the want of approval by the 
departmental assembly will not affect the validity of the grant. Although some 
of the grants, purporting to be made by Pio Pico, in the spring of 1846, shortly 
before his expulsion, have been shown to be executed after that time, there is 
no evidence in this case to justify the court iu deciding that this grant is not 
authentic." (1 Wallace, 329, 330.) 

There were few titles in California ever approved by the 
departmental assembly. The counsel have undertaken to de- 
fine a perfect title, as he termed it. I prefer a higher author- 



20 

ity. And as the term " expediente" has been often used 
before this committee, I will read you the definition of the 
Supreme Court, from 1 Wallace, 339: 

" When complete, an expediente usually consists of the petition, with the 
disefio ; a marginal decree approving the petition ; the order of reference to the 
proper officer tor information ; the report of that officer in conformity, to the 
order; the decree of concession; and the copy or a duplicate of the grant. 
These several papers, that is, the petition, with the disefio annexed, the order 
of reference, the informe, the decree of concession, and the copy of the grant, 
appended together in the order mentioned, constitute a complete expediente 
within the meaning of the Mexican law." (United States vs. Knight's Admin- 
istrator, 1 Black, 245, 246; United States vs. Johnson, 1 Wallace, 326, Dote.) 

You will thus see that the concession precedes the grant, 
and is distinguished from it; that it is the marginal indorse- 
ment, and the direction to the magistrate or local officer to 
inquire whether the land be vacant, and whether the applicant 
is of the class of persons entitled to receive it. 

And is not such an act "property" within the meaning of 
the treaty of Hidalgo? Let the 23d section of the coloniza- 
tion law of 4th January, 1823, answer the question. I read 
from Paschal's Digest, article 533 : 

" The date of the concession for lands constitutes an inviolable lav: for the right 
of property and legal owyiership; should any one through error, or by subsequent 
concession, occupy land belonging to another, he shall have no right to it, 
further than a preference in case of sale, at the current price." 

" The consequence of such right of property and legal ownership is the power 
of alienation. And there is no inhibition in this decree, express or implied, of 
the right to alienate at any time after the right of property has been acquired." 
(Portis vs. Hill, 14 Tex., 71.) 

According to a series of decisions in Texas, this mere act 
of concession, a floating right before it was located, became 
the subject of sale, was located by the purchaser, who after- 
wards received the grant for his own benefit. 

You will see that in law and reason, in every land under 
the sun where the maxim prevails, that all titles to land are 
derived mediately or immediately from the Government, this 
is necessarily so. Examples familiar to you will illustrate. 
When Virginia ceded the northwestern territory, the right 
to locate the military warrants in the ceded territory was 
reserved. These warrants in favor of the Virginia line were 
not land, but they were concessions, "the inviolable law of 
the right of property." It was a reservation in favor of the 
people, who were unwilling to lose anything by the cession. 
My father, who had acquired one of the military warrants by 
his services in the Virginia line, like thousands of others, sold 
his concession, and it was located upon the Miami river. 
Much litigation has grown out of these locations. The mili- 



21 

tary warrant was the concession; the location and survey 
were acts of officers in the field; the final patent was the 
grant. But the first act, "the concession, was the inviolable 
law of property." The same reservation was made in the 
cession of Kentucky. Nearly the whole State was located 
by these warrants, and out of the conflicting locations and 
clashing surveys have grown up judicial opinions which are 
the soundest upon the subject of surveys in the world. To a 
large extent the same system prevailed in Tennessee, which 
was ceded by North Carolina, with a reservation in favor of the 
military warrants of the soldiers of that State. The same sys- 
tem prevailed in New York and Pennsylvania, and in all the 
"old thirteen States," as will be seen in the early judicial his- 
tories of the country. We of Texas have had to survey these 
whole interesting fields for analogies. 

In Georgia, after the Revolution, we adopted a different sys- 
tem for the distribution of the public lands. We disposed of 
them by lottery. The lands were sectionized, the inhabitants 
were classified. To every man was given a chance ; to the 
married man two; to the widow and orphans two; to the 
soldiers of liberty additional chances on account of merit. 
The names were put into one wheel, the numbered sections 
into another. The fortunate drawer received a certificate 
describing his section. This was his concession, and it was 
the date of inviolable property, which he could sell, and the 
holder could have it ripened into a grant by paying a small 
fee. 

Your system of military warrants may be more familiar to 
you. The soldier of fourteen days proves his services before 
a magistrate or notary. The pension office compares the war- 
roll with the claim, and issues a warrant, which is negotiated 
in market with all the certainty of value of a bank bill. 

This warrant is the concession, and it is the law of inviola- 
ble property. The holder of it locates it upon some quarter 
section of your public lands, and in due time the patent issues, 
the validity of which rests upon the concession. So is it with 
your school lands, your railroad grants, and your homesteads. 
The initiatory title is the law of inviolable property. The 
final title is the patent, which is but the legal evidence of title. 
Until that issues the fee is in the Government, but the equity 
dates from the concession. 

In all the Spanish dominions there was only a difference of 
practice. The party entitled to the favor of the government 
petitioned for land; sometimes describing it, sometimes not. 
The proper authority conceded the petition, "let it pass," or 



22 

"let it be referred for report," or "granted, as prayed by the 
petitioner," or other equivalent words. That was the conces- 
sion: the right to locate, to survey, and finally to obtain the 
grant. In Texas, the new government of 1836 obligated itself 
to finish these unfinished concessions. 

We granted lands — head-rights — to the settlers who had not 
acquired their quantum of lands before the revolution. We 
gave special bounties to the heirs of the martyrs at Goliad 
and San Antonio; to the colonists of Peters, Mercer, Castro, 
and the German Emigration Company, and premium lands to 
the empresarios of the old and new governments; and we 
have donated millions of acres to railroads, canals, factories, 
and other improvements. In all these the one necessary sys- 
tem has pervaded. The certificate or warrant, the conces- 
sion, by whomsoever granted, has become the inviolable law 
of property. The locations and surveys of these conces- 
sions ( u dedi: 1 give") carries the concession, or warrant to 
the general land oflice, where, upon proper examination, the 
patent issues. 

Accustomed to study land titles all my life, I have learned 
to take a philosophical view of them. I have seen that what- 
ever system may have been adopted, there must be imperfect 
titles. And out of this great fact, and the constant revolu- 
tions of mankind, has grown the rule of the highest morality, 
that the conqueror must respect, and, according to his own 
syBtem, make good the obligations of the previous sovereign. 

Now, gentlemen, let me tell you why that was so. You 
will see, as I proceed, and as Mr. Evarts conceded on Friday, 
that the law of colonization gave to every Mexican inhabitant 
who, for meritorious services in the past, or for occupancy in 
the present, deserved it, the land which he solicited, limiting 
the quantity only to eleven leagues. The first law of colo- 
nization grew out of the colonial enterprise of an adventurous 
son of New England, Moses Austin. As early as 1820 he 
made his appearance at San Antonio and solicited the privi- 
lege of introducing a number of inhabitants on the Brazos 
river. The right was conceded to him, so far as it could be 
conceded by the local authorities; but it had to be referred 
to the government. Austin then addressed himself to the 
reigning prince, Iturbide, under whose advice this law was 
enacted, providing for the colonization of the public lands of 
the nation, and securing the private enterprise of Austin. 
Under that system the law grew up. The mode of o\>t:'.iaing 
grants under the former government was to solicit t lie local 
governor, the military officer, generally called the sub delegate 



23 

or commandant, who resided at San Antonio or some other 
part of the country, for a grant of land; and, as far as that 
officer was concerned, he conceded it to him. After going 
through the survey, &c, it was referred to the intendente at 
San Luis Potosi for confirmation. When the Mexican gov- 
ernment seceded from Spain, it was necessary to provide the 
means for disposing of the public domain. The law was, not 
to create commissions to ascertain what had been done, but 
to declare, for the past and the future, that the concession or 
authority to obtain the grant should constitute the inviolable 
law of property. And it grew up, of course, that he who got 
that concession, (it being property,) had the right to dispose 
of it and to sell it. And, so far as the national decrees were 
concerned, that remains in force until the present day in the 
part of the country which is yet inhabited by Mexicans. 
The practice is substantially the same in all the States. The 
petition is the first act; the concession the second, (that is the 
inviolable law of property;) the survey or report the third 
act; and the final grant, by whomsoever made, the last act. 

VI. It will thus be seen that although by the treaty and the 
law, the acts of paper which Gomez produced from the record, 
it was "property" within the meaning of the colonization law, 
yet, had there been superadded thereto the last act of the 
governor, called the grant, and the approval of the depart- 
mental assembly, the title would yet have needed the con- 
firmation by the commissioners, or else by the district court, 
and the refusal or abandonment of appeal by the United 
States, or an affirmance by that tribunal, together with a 
survey under the order of the court, the approval of that 
survey either by the court or the Commissioner of the General 
Land Office, and a patent to the party. And this was the 
inexorable law, whether there was perfect or imperfect title, 
juridical possession, or paper title and long-continued posses- 
sion. So that all you have heard about juridical possession 
and perfect or imperfect paper titles is a hypothesis founded 
upon the veriest misapprehension of the law. The very au- 
thorities read showed that the juridical possession under the 
Spanish system could only exist upon the completion of the 
survey. But neither under Spain nor Mexico had there ever 
been a survey in California. 

If any of you, gentlemen, take occasion to consult the de- 
crees and the history of that country^you will find that to the 
captain generalcy of Yucatan and California was never ex- 
tended the practice of surveys, but disenos or maps took the 
place of surveys. They could not segregate the public lands 



24 

according to the system of the United States. It was their 
law and custom that none of the juridical possession could 
take place until the measurement was made and the bounda- 
ries fixed. 

VII. And I go further, and add, that even if we be right 
in our theory that the judgment of confirmation stands, 
and our survey is lawful, regular, and properly located, yet, 
as the Commissioner of the General Land Office, overruling 
the 'decisions of two of his superiors and President Lincoln, 
refuses us a patent, we still should be obliged to appeal to 
the Congress; for, with perfect title, perfect confirmation, 
perfect survey, perfect order for a patent, patent engrossed 
and almost signed, we could not maintain our action of eject- 
ment or a mandamus against the President or Secretary of 
the Interior to recover possession of our land, or to force the 
granting of the parchment. (Burgis v. Gray, 16 How., 62 ; 
Fremont's Case, 17 How., 553-554; Paschal v. Perez, 7 Tex., 
366, 367; Soulard v. The United States, 4 Pet., 511; Les 
Bois v. Brammel, 4 How., 449 ; Approved, Jones v. Menard, 
1 Tex., 785; Perchman's Case, 7 Peters, 87; Affirmed, Trim- 
ble v. Smithers, 1 Tex., 797.) 

Of course I will be understood as speaking of suits at com- 
mon law in the federal courts. There none but legal rights 
are respected. And by legal rights are meant such patents 
as show that the government has parted with the fee; in other 
words, parchments. (Parsons vs. Bedford, 3 Pet., 447; Stro- 
ther vs. Lucas, 6 Pet., 768; Parish vs. Ellis, 16 Pet., 443, 444; 
Bennett vs. Butterworth, 11 How., 669; Sheirburne vs. De 
Cordova, 24 How., 423; Paschal's Annotated Constitution, p. 
199, note 195.) 

Therefore, in conceding that an appeal to Congress is neces- 
sary, we concede no more than any one of the six hundred 
suitors whose titles were confirmed without reaching the Su- 
preme Court, or the one hundred whose cases have been con- 
firmed there, would have to concede were his patent refused 
to him. 

VIII. But it is objected that we have had our day in court ; 
that we have been heard in the successive tribunals provided by 
law, and that the final tribunal has rejected our claim, and 
that now we ought not to be heard, unless we can present a 
case of an original equity against the conscience of the body 
politic ; and that we have failed to procure the confirmation 
by some mistake, fraud, injustice, accident, or hardship. 

We thank the learned gentleman for this ingenuousness, as 
far as it goes. So his superior learning relieved me of any 






25 

extensive discussion of the colonization laws, under which the 
title originated; and I may risk the review of these laws in 
my printed argument before the Senate committee. If Mr. 
Evarts had not read them critically, he comprehended them 
well when he expressed it, that the policy of those laws was 
to give away the public lands, with no limitations, except the 
restriction that no more than eleven leagues should be united 
in the same hands. Had the learned gentleman read a little 
more carefully and trusted less to the confused mind of his 
associate he would have avoided some errors into which he 
fell. Mexico respected the titles made by Spain. Thus you 
find in the second article of the colonization law of 1824, 
that this law comprehends those lands of the nation not the 
property of individuals, corporations, or towns, which can be 
colonized. (Paschal's Dig., Art. 544.) 

All the argument about livery of seizin, or juridical pos- 
session, or possession at all, is answered by the 9th article of 
the law of 1824. (Paschal's Dig., Art. 551.) 

[Mr. Wilson. I think it is modest of you to cite your own 
book as authority. 

Mr. Paschal. A gentleman who has prepared a book which 
his State has adopted, and which has received a national rep- 
utation, has a right to cite it. 

Mr. Wilson. It might have been prepared for this particu- 
lar case. 

Mr. Paschal. The insinuation is too mean to be answered. 
This book was prepared for no such case. It was prepared, 
gentlemen, as so many books have been prepared, in an hour, 
and, as it were, in a prison, when, with the apostle, I could 
pray that "all men were like unto me, save these bonds." 
Four years of those dark hours were given to the preparation 
of this book. There never went a note into it but in accord- 
ance with truth. It was prepared in the consciousness and the 
faith that the law would return, and that the Constitution 
would return, for my protection, and in the belief that the 
laws of this book would become, as they are becoming, the 
rule of action not only for what we now possess, but for what 
we shall possess, under the ideas of the splendid protectorate 
inaugurated by Houston, of Texas, when all Mexico shall be 
a part of your territory, and the Spanish colonization laws, 
a venerable system, which has received the construction of 
the first jurists of the age — the men who have presided on the 
bench of Texas — will become familiar to the entire profes- 
sion. When the gentleman shall have prepared such a work, or 
done anything else that can make him my peer, I will notice 



26 

his vile insinuations. Until then I can treat him with the 
contempt which I feel for the little learning that makes men 
mad.] 

I was about reading, when interrupted, the following para- 
graph from Paschal's Digest: 

"(Art. 551.) A preference shall be given in the distribution of lands to Mex- 
ican citizens, and no other distinction shall be made in regard to them except 
that which is founded on individual merit, or services rendered the country, or, 
under equal circumstances, a residence in the place where the lands to be 'dis- 
tributed are situated." 

Here is the clear distinction between services and residence 
upon the land. Gomez was of the first class; Yorbo of the 
second. Yorbo resided on the land. According to the diseno, 
surreptitiously forged and attempted to be foisted upon us, 
his land is on the opposite side of the river. But, in truth, 
he lived on the land which he asked to be confirmed. This 
land he actually held, and actually sought. I charge the 
gentleman here with having insisted on that document, false 
upon its face, and which has been proved this morning to be 
false. The last act in the drama, the last card by which they 
expected to succeed, was to bring from the land oflice a docu- 
ment dated back two years, in order to appropriate our diseno, 
connected with our grant, which somebody had stolen. 

Now, strange indeed is the hallucination which leads to the 
conclusion that, the party having expressed in the petition that 
he wished the lands for the purposes of cultivation, he is con- 
fined to such lands, and that if such cannot be found within 
the area of his diseno he shall take none, or, if there be some 
tillable and others not, he shall be confined to the former, and 
forced to surrender the mineral lands to whoever shall claim 
them. 

A little study of the very article to which Mr. Evarts re- 
ferred will dispel that theory. 

" It shall not be permitted to unite in the same hands, with the right of property 
more than one league square of land suitable for irrigation, four square leagues 
in superficies of arable land without facilities of irrigation, and six square 
leagues in superficies of grazing land." (Paschal's Annotated Digest p 210 
art. 554, note 352.) ° r ' 

If you examine the petitions and the grants you will find 
that inform this idea was pursued, while in fact few of such 
large tracts admitted of irrigation, fewer still contained four 
leaaues of arable land, while the pasture land depended upon 
the country. 

Now, gentlemen, look at it. The law contemplated that a 
party, although he might get eleven square leagues— the vast 



27 

quantity of 48,000 acres — should only take one square league 
in superficies of irrigable land, four square leagues in super- 
ficies of arrablc land, and six square leagues in superficies of 
grazing land, so that he should have one-eleventh of irrigable 
land, to which the Mexicans and Spaniards attached a very 
great importance. He was to have four square leagues of ara- 
ble, that which could be plowed, and six square leagues of 
pasture land. That is where all the idea came from. He 
who solicited land generally stated that he wanted to devote 
himself to agriculture or to the raising of stock, in order to 
show that he was of the class of persons entitled to receive a 
grant. But are we to be told that, unless the land possessed 
all these concomitants, it was no grant? I remember, Mr. 
Chairman, a long time ago, when trying a case in Texas, to 
have found you acting as commissioner in the proving of one 
of our claimant's grants. I mean the leading case of Houston 
Yates and lams. You must, then, have learned something 
about this system. You learned more about it when Judge 
Watrous was on trial before this committee. There is no 
lawyer on this committee but who has been at some time made 
familiar with the system of the public lands under the Mexi- 
can colonization laws. A party wishing an eleven league 
tract solicited and petitioned for it, sometimes in some particu- 
lar place and sometimes not. It became a form, that the sur- 
veyor usually stated it to be one league of irrigable land, four 
leagues of plowing land, and six leagues of pasture land. 
But if you go and examine the exterior of those grants you 
will find that their boundaries were often in open prairies or 
fronting some river. Indeed, there is little irrigation in that 
State of 235,000 square miles, and no attention can be given to 
the fact that the lands were or were not adapted to the purposes 
for which they were solicited. The petitioner might be mis- 
taken as to whether the lands were irrigable or not ; he might 
be mistaken about their being arable; he could not be much 
mistaken about their being fit for pasture, for in Texas grass 
generally grows luxuriantly. So in California there are large 
districts of country totally unfit for irrigation ; a good por- 
tion of them may be fit for pasturage, but the arable land is 
not so abundant as to get it in large bodies. But who has 
ever heard that in the confirmation of any of those titles that 
has been made a question? No one has dreamed of it. It is 
the fight of the last ditch. 

For the convenience of the committee I here reproduce my 
own note, 352, p. 210, upon this article. It is exhaustive of 
the authorities down to that time: 



28 

"This decree was enacted before the State governments were organized under 
their constitutions, and, emanating from the supreme power, it was enforced in 
all the provinces or States. Chambers v. Fisk, (22 Tex., 528.) The constitutive 
act and the State colonization law of 1825, articles 13 and 24, quoted. Id. The 
States granted eleven leagues without relation to quality, further than as to the 
price to be paid. Id. It seems to contemplate that more land may accumulate 
in the same hands, but it must be alienated. This policy, in all its parts, as 
here developed, is plainly indicated in the previous (imperial) colonization law 
of 1823. (Rockwell, p. 618, arts. 11-19.) Id. 530. This (12th) article consti- 
tuted no barrier to the acquisition, by Thomas J. Chambers, of more than eleven 
leagues, under decree 277, under which he claims the land in controversy. Id. 
532. To be superior judge it is required that he be a citizen in the full exercise 
of his rights, over twenty-five years of age, a lawyer by profession, and a man' 
of probity and science. He shall be appointed by the congress, on the nomina- 
tion of the governor, en terna, and he cannot be removed from office except for 
some cause legally manifestedand approved. His salary shall be three thousand 
dollars per annum. Art. 239. 'The salaries established by this law shall be paid 
the first year with vacant lands situated within the judicial circuit, and at the 
rate of one hundred dollars for each sitio.' The objection that the grant was di- 
vided, and titles issued to the land in several parcels, is answered by the fact that 
it was customary, and not in contravention of any principle of law. (Jenkins v. 
Chambers, 9 Tex. 231 ; Hancock v. McKinney, 7 Tex. 384.) McGehee v. Dwyer, 
(22 Tex. 463.) Hartnell got a grant from Governor Alvarado, dated 28th June, 
1841, for a body of land lying in Lower California, the quantity not specified. In 
November, 1844, he obtained another grant for eleven square leagues lying in 
Upper California. United States v. Hartnell, 22 How. 289. The narrow question 
is, had the governor of California power, in 1844, to grant, gratuitously, for the 
purposes of tillage, inhabitancy, and pasturage, more than eleven leagues of land 
to any one person? Id. 289. Both titles were brought before the departmental 
assembly. That body held the law to be that the governor could not " unite in 
the same hand " more than eleven leagues, although it might be in different tracts, 
and so reported to him. This construction was correct. Id. The public domain 
was the property of the Mexican nation. Id. And the agents who assumed to 
grant it must represent the nation. Id. This case allowed the doctrine that 
the grant could be located in two places, and as the first grant had six leagues, 
the eleven were curtailed to five. Id." 

The only other article in this law which needs to be noticed 
is the last or 16th : 

"The Government, in accordance with the provisions established in this law, 
will proceed to colonize the territories of the republic." — {PaschaVs Dig., art. 

The regulations adopted by the President under this article 
are found in note 354, pp. 210, 211, of the same work ; in 
Rockwell's Laws, pp. 453, 454; in Carnbuston's Case, 20 How- 
ard, 60. And the mode of obtaining a grant under them is 
explained in Fremont's case, 17 How., 554; Boisdore v. The 
United States, 11 How., 63; Glenn v. The United States, 13 
How., 250; Villemont v. The United States, Id. 266. The 
only sections cited against us are the 8th and 9th : 

"8th. The definitive grant asked for being made, a document signed by the 
governor shall be given, to serve as a title to the party interested, wherein it 
must be stated that said grant is made in exact conformity with the provisions 
of the laws, in virtue whereof possession shall be given. 9th. The necessary 



29 

record shall be kept, in a book destined for the purpose, of all the petitions pre- 
sented, and grants made, with the maps of the lands granted, ana the circum- 
stantial report shall be forwarded quarterly to the supreme government." 

You, as practical men, will see at once that this regulation 
was only directory; that it appertained to the duties of the 
officers, and that it would indeed be a hardship to deny the 
party his right because the record may not have been com- 
pleted, or may have been lost. But it was sought to escape 
from this plain rule of common sense by the bold assertion, 
that the Supreme Court had decided, that unless the record of 
the title be complete no confirmation would be allowed. Could 
so absurd a precedent be produced, it would not be respected; 
but none such can be found. The case of The United States 
v. Castro, (24 How.,) 346, was one where nothing was found in 
the archives save the grant by Pico, and that was proved to 
have been deposited there by McKenzie, the purchaser from 
Castro, in 1849. Nor was any other act whatever attempted 
to be proved. What was said, was said in reference to such a 
case; but even then Chief Justice Taney states the rule in 
this qualified manner : 

" But as the loss or destruction of public documents may in some instances 
have occurred, it would be unjust that a party should be deprived of his prop- 
erty by reason of an accident which he had not the power to prevent ; and, 
upon proof of that fact, secondary evidence, to a certain extent, will be re- 
ceived. 

" But in order to maintain a title by secondary evidence the claimant must 
show, to the satisfaction of the court, 1st, that the grant was obtained and made 
in the manner the law required, at some former time, and recorded in the proper 
public office ; 2d, that the papers in that office, or some of them, have been lost 
or destroyed; and, 3d, he must support this proof by showing that, within a 
reasonable time after the grant was made, there was a judicial survey of the 
land, and actual possession by him, by acts of ownership exercised over it." 
(Page 350.) 

These rules, it will be seen, relate to the proof of a grant 
by parol, which it is shown once existed. And the diseno 
(there were no surveys in California) was not a condition, 
but a mode of proof where the grant was lost. So it was held 
in Lewis vs. San Antonio, 7 Texas, 288, and McGehee vs. 
Dwyer, 22 Texas, 461, 463. The cases of the United States 
vs. Fuentes, 22 How., 445; United States vs. Button, 23 How., 
341; United States vs. Luco, 23 How., 615, do not carry the 
rule even thus far. They were cases "where there was no 
trace to be found in the public archives." In the case of Palmer 
vs. The United States there was a petition, but no concession; 
that was refused by the governor, because the land was occu- 
pied as a fort, and was not subject to grant. The subsequent 
grant dated after the fort was occupied by the Americans, 
and it was proved to be fraudulent. 



30 

The most, then, that can be said from all these cases is, 
that, where there is no trace of a record in the archives, the 
grant cannot be proved by parol. But that is not the case of 
Gomez. The petition, the diseno, the indorsement or con- 
cession by the governor, the reference to the local judge, the 
report of that judge, are all found in the archives, and no sus- 
picion is cast upon them except by Goold, who afterwards 
renounces it, and by Black, who speaks upon the authority of 
Goold. Hopkins proves its rightful existence there. These 
very intervenors have photographed it and published it to the 
world. Through all these long years no effort is made to dis- 
prove any signature attached to it, or to show that it was ante- 
dated. And when Gomez was suborned and papers forged 
upon the hiring by the New Idria Company, the effort was 
not to prove that the expediente was not genuine, but that 
Gomez had abandoned his purpose to take a grant there. 

X. The missing act was proved to the satisfaction of the 
commissioners. No objection was taken there; and you have 
seen, in the opinion of Mr. Justice Field, that none could 
afterwards be urged ; and that the effort to impeach the wit- 
nesses could not succeed because of anything the judges may 
have said in other cases. 

But take away the grant, and we have shown that the con- 
cession was a law of inviolable property. 

Upon the proof, written and parol, as has often been read 
to you, the commissioners reported as follows : 

The United States. J Monterey 

" The petitioner in this case states in his petition that he had a grant for the 
above-named place, issued in the year A. D. 1844 by Governor Micheltorena, 
and that the grant was among the archives of the State in Monterey, at the 
time that the archives fell into the hands of the Americans, in July, 1846, and 
that it was either lost or destroyed. He has also given satisfactory'proof of the 
existence and loss of the grant, but has failed entirely to offer any proof what- 
ever going to show that he ever occupied, improved, or cultivated any part of 
the land, or that any one ever did for him, or that he ever saw the land. We 
are, therefore, of the opinion that the claim is invalid, and a 'decree rejecting 
the same will be entered. 

" Rejected. 

" Filed in office March 6, 1855. George Fisher, Secretary." 

The theory of the gentleman is, that he might admit all 
that we proved upon this hearing, and then ask a non-suit or 
sustain a demurrer to the evidence. I know not under what 
system of law he may have practiced, or in what school he 
may have learned logic ; but to make such an assertion he 
has to admit that it is true that Gomez petitioned for the 
land; that his prayer was conceded, and this concession referred 



Vicente Gomez ] No. 569. — Claim for a place called Panoche Grande, con- 
taining four square leagues, situated in the county of 



31 

to the Secretary of State by superior order; that it was 
referred by that officer to the local judge for report; that the 
report was in favor of the grant, and the grant made. Then 
he would have to stand alone upon the erroneous ground of 
the commissioners, that there was a condition in the grant, 
(when no condition was proved;) and that the party must have 
cultivated and occupied the land, or else the right was forfeited. 
But here they are met by the fact, that neither in the coloni- 
zation law nor in the regulations is there one word about con- 
ditions in this class of grants issued to Mexicans for meritori- 
ous services. If, as in this case, these services had already 
been performed, the grant could not be burdened with the 
conditions. Thus, read the law of 1863 upon the subject: 

" Natives of the country shall have a preference in the distribution of land, 
and particularly the military of the army, of the three guaranties, in conformity 
with the decree of the 27th of March, 1821 ; and also those who served in the 
first epoch of the insurrection." (Paschal's Dig., art. 528.) 

And as we have seen by the law of 1824 the only condition 
was as to quantity, the grants being regarded, as was admitted 
by the learned gentleman from New York, as to this class of 
inhabitants as pure donations. We reproduce that article: 

" It shall not be permitted to unite in the same hands with the right of prop- 
erty more than one league square of land, suitable for irrigation, four square 
leagues in superficies of arable land without the facilities of irrigation, and six 
square leagues in superficies of grazing land." (Paschal's Dig., art. 554.) 

The committee here adjourned till 27th April. 

Washington, D. C, April 27, 1870. 

Continuation of argument of Mr. Geo. W. Paschal on behalf 
of William McGarrahan. 

[Before resuming his regular argument, Mr. Paschal under- 
took to demonstrate to the committee that the date of Octo- 
ber, 1843, which the Yorbo petition was made to bear, offered 
by Mr. Wilson and read yesterday, bore a false date. (Ante, 
p. 25.) And he exhibited a certified copy, obtained yester- 
day from the General Land Office, of the papers and map in 
that case, and a letter from Commissioner Wilson to Mr. 
McGill, showing the true date of the application to be Octo- 
ber 23, 1845. He also read the indorsement of Governor Pio 
Pico, in Spanish, bearing his name. He said that Pico was 
not Governor in 1845, and the omitting his name and altering 
the true date in the translation bore a very suspicious appear- 
ance. He said that the counsel had now an opportunity to 
withdraw his false paper, and he asked him if he did so. The 
gentleman is silent. Should he hereafter persist in the use of 



32 

this paper, now branded with falsehood, and say that the cor- 
rect date is 1843, he will subject himself to the rule that he 
who uses false evidence, or a false certificate, after being fur- 
nished with the information that it is false, thus becomes the 
utterer of a forgery or a perjury, as the case may be. 

When we adjourned the other day, I was discussing the 
question of title as regarded the Mexican law. I said that 
there was nothing which warranted the insertion of any con- 
dition in any of the grants to Mexicans on account of meri- 
torious services ; that there was nothing in the construction, 
either of the colonization law or of the regulations of 1828, to 
warrant it. The 11th and 12th sections, which were relied 
upon by Mr. Coffey and Mr. McAlister in their last argument 
before the Senate, relate in their terms to the empresarios and 
colonists' grants. To state what an empresario is, and what a 
colonist is, will give you an idea in a moment. The empresa- 
rios were meij who received political grants from the govern- 
ment, which permitted them to introduce inhabitants where 
before there were none, in scopes or districts of country. 
They undertook the introduction of two, three, or four hun- 
dred families, and were to receive ten per cent, premium, or 
ten leagues for every hundred families they introduced. 
Necessarily there were inserted conditions as to when these 
families should be brought, and what character of title should 
be given to the colonist, and what length of time he should 
reside there, and what improvements or cultivation he should 
make to entitle him to the limited quantity which he could 
take. But to the Mexican grants, which were pure donations, 
no such condition attached. None could be inserted. There 
was nothing in the national law or the regulations to warrant 
it. I now return to where I left off.] 

This same point (about the necessity of cultivation) was 

urged with all the advantages which local practice and a 

graduation in that wonderful seminary, the Attorney General's 

office, which McAlister and Coffey could employ before the 

committee of the Senate. But the argument was thus disposed 

of by Messrs. Sawyer and Kellogg, of the Land Committee: 

"In the oral and printed speeches of the counsel of the claimant, it was ably 
argued that, as to the grants to Mexican citizens, which were based upon mili- 
tary or other services, or were purchase grants, there was no power to insert the 
condition of cultivation or possession; out that such conditions appertained 
solely to the grants to empresarios or contractors, for colonization purposes, and 
to the new inhabitants, who were introduced by such empresarios or contract- 
ors. It is not considered necessary to go into a discussion of this question, since 
there is evidence to show that prior to 1851 the country was practically in the 
hands of hostile Indians, and it is believed that the principles which were ap- 
plied in Fremont's case apply in this. 



33 

"Ih Fremont's case, (17 Howard, 360,) the court says-. 

" 'The main objection, on this ground, is the omission to take possession, and 
to have the land surveyed, an<jl to build a house on it. It is a sufficient an 
to this objection to say, that neg] i respect to these conditions an ■ others 

annexed to the grant, does not, oJ itself, always forfeit his right. It bu 

knd to be denounce. I by another; but the conditions do not declare the 
land forfeited to the State upon the failure of the grantee to perform them. 

" 'Now, it is well known that Mexico, and California as a part of it, had for 
some years before been in a disturbed and unsettled state, constantly threatened 
with insurrectionary and revolutionary movements; and in this state of things, 
the uncivilized Indians had become more turbulent and dangerous to the frontier 
settlements which were not strong enough to resist them. It is in proof that 
this state of things existed in the Mariposa valley when this grant was made, 
(1844;) that it was unsafe to remain there without a military force, and that 
this continued to be the case until the Mexican Government was overthrown by 
American arms. In the very year of the grant a civil war broke out in the 
province, which ended by the expulsion of the Mexican troops. Now, it is 
clear from the evidence, that during the continuance of the Mexican power it 
was impossible to have made a survey or to have built a house on the land and 
occupied it for the purpose for which it was granted. Nobody proposed to settle 
on it or denounced the grant for a breach of the conditions. And at the time 
the Mexican authorities were displaced by the American arms, the rights which 
Alvarado had obtained by the original grant remain vested in him according to 
the laws and usages of the Mexican Government, and remained so vested when 
the dominion and control of the government passed from Mexico to the United 



"In the case of the United States -vs. Yorbo, (1 Wallace, 412,) no conditions 
were inserted. Mr. Justice Field says : 

" ' The absence from the grant of conditions requiring cultivation and inhab- 
itancy and the construction of a house within a year, does not affect the valid- 
ity of the grant. * * * 

" 'The object of the general colonization law of 1824, and the regulations of 
1828, which were adopted to carry that law into effect, was the settlement of 
the vacant lands of the republic, and to secure that object concessions like the 
one in this case were gratuitously made, subject to the conditions of cultivation 
and inhabitancy, although the conditions were not always inserted in the title 
papers.' " 

The first of these is a case where a condition was illegally- 
inserted in a grant of this class ; but it was held to be immate- 
rial. The second is a case where the condition was not inserted, 
and it was held that the cultivation having already existed, not 
upon the grant as now claimed for an infamous purpose, but 
upon the other side of the river, it was held that the condition 
would have been useless and improper. The Fremont case is 
fully affirmed in The United States vs. Larkin, 18 How., 563. 

XI. Driven to the wall by these decisions, Mr. Coffey 
attempted to maintain the necessity of cultivation or occu- 
pancy, upon the 11th and 12th articles of the regulations of 
1828, which read thus: 

" 11th. The governor shall designate to the new colonist a proportionate time 
in which he shall be bound to cultivate or occupy the land, on terms, and with 
the number of persons or families which he may have capitulized for, it being 
understood that if he does not comply, the grant of the land shall remain void; 
nevertheless the governor may revalidate it, in proportion to the part which 
the party may have fulfilled. 12th. Every new colonist, after having cultivated 

3 



34 

or occupied the land, agreeably to his capitulization, will take care to prove the 
same before the municipal authority, in order that, the necessary record being 
made, ho may consolidate and secure his right of ownership, so that he may 
dispose freely thereof." 

But in terms, and reason, and spirit, this relates to the em- 
presarios, who engaged to introduce foreign colonists, and to 
those colonists those enterprises are fully explained in the 
colonization laws and the judicial cases which have grown out 
of them. I agree that our Supreme Court has not well under- 
stood these distinctions; and I call your attention to the 
readiness with which that learned tribunal has followed the 
supreme court of Texas, whenever cases have come from that 
State. Thus when the national court had gone wrong in Ar- 
guello vs. the United States, (18 How., 539,) in reference to 
grants to Mexicans in the Littoral leagues, holding that the 
inhibition to colonize applied to grants for colonial establish- 
ments, and not to the favored Mexican inhabitants, who ought 
to be planted upon the sea shore and eastern borders. And 
a case afterwards came from Texas, where the reservation had 
been held to extend to all classes of grants, until the consent 
of the president of Mexico could be obtained. The Texas 
decision was followed to the overruling of Arguello vs. the 
United States. (League vs. Egery, 24 How., 255; Foote vs. 
Egery, Id., 539 ; Paschal's Annotated Digest, art. 546, note 
348; See United States vs. Sutter, 21 How., 174, 175, where 
the absence of the diseno and the governor's signature from 
the grant were held to be immaterial. This was confirmed as 
an empresario grant and it explains these regulations.) 

This was a deference due to the court of the State where 
the colonization system had originated, and where the very 
able judiciary of Texas had possessed such superior opportu- 
nities of understanding the system of Mexico. 

The learned counsel, now driven to admit that no such con- 
ditions of actual occupation or cultivation existed in the law 
or the regulations, and hence none such could be rightfully 
inserted in the grant, fly to the narrow and unnatural ground 
that there must, at least, have been livery of seizin or juridical 
possession evidenced by the plucking off the shoe and giving 
it to the party, and I suppose leaving it upon the ground, or 
pulling up grass and tossing it about, as some old Spanish 
surveyors used grandiloquently to report. And even my 
brother Evarts, who upon great points was ingenuous, was 
led to hang an argument upon some loose dicta which he evi- 
dently had not considered. 

The case which he relied upon was Graham vs. The United 
States, 4 Wallaco, 259. This he feebly urged might be held 



35 

to impair the cases of Fremont, Yorbo, and Larkin, where 
there was no juridical possession. But the very fact that 
the grant was to "one Mayors" proves that he was not 
a Mexican, but a foreigner, to whom the 11th and 12th reg- 
ulations applied ; that he had had his boundaries designated, 
corresponding as nearly as possible to a survey ; that he actu- 
ully took possession according to this measurement, and now, 
after the confirmation of the title, after this certainty of lo- 
cality, his vendee, Graham, asked to float the grant and 
take the land elsewhere. The surveyor yielded to this wish, 
and the district court refused to confirm the survey. All that 
was said was with reference to this state of the case. 

Short as is my time, I will read the words of the judge. (4 
Wall., 260) : 

" The Mexican law, as well as the common law, made a formal delivery of 
possession, or livery of seizin of the property, essential after the execution of a 
grant for the investiture of the title. * * As preliminary to the actual deliv- 
ery of possession, the land had to be measured, and its boundaries established, 
when there was any uncertainty in the description of the premises. * * By 
this proceeding, called in the language of the country the delivery of juridical 
possession, the land granted was separated from the public domain, and what 
was previously a grant of quantity became a grant - of a specific tract." 

You thus see that the subject was not considered in refer- 
ence to the essentials of the title, but to the proof of locality. 

In the case of Malarin vs. The United States, (1 Wall., 282,) 
there was a measurement by the magistrates, and a formal 
delivery of possession, according to the old Spanish grandilo- 
quence. But the question rose not upon the necessity of this 
measurement and possession to the validity of the grant, but 
it was invoked as proof that an alteration in the record from 
" one " to " two leagues " was consistent with the sworn state- 
ment of Governor Alverado, that the alteration was made to 
suit the measurement. All that is said in Castro's case, (24 
How., 346,) Neleigh's case, (1 Black, 306,) and Peralta's 
case, (3 Wall., 349,) relate to the questions of evidence, where 
there is a total want of archives or some suspicious circum- 
stances, which actual pedal possession might help to remove. 
But to assume that there must have been actual measurement 
and juridical possession as essential to confirmation, would be 
to destroy ninety-nine hundredths of all the titles in the 
whole Mexican nation. 

While we have recognized the general principle that we 
adopted the former laws, so far as not inconsistent with our 
own laws, we have never recognized a custom so contrary to 
all our notions of paper title and record proofs of transfers. 
Registration or notice with us stands in the place of livery of 
seizin. 



36 

XII. The gentleman, then, could not take his non-suit upon 
this weak and absurd view of the law, nor upon such a motion 
would his tirade against our proofs be heard. 

For here, in addition to all that he has so gratuitously said 
in speculating about the possibility that the expediente may 
have been foisted into the papers, or that our witnesses, who 
proved that the lost grant may have been sworn falsely, or that 
the evidence may have been insufficient, he would be met, not 
only with what was so well said by Justices Grier and Field, 
in the cases of Anguisola and Johnson, 1 Wallace, (already 
quoted,) but he would have to encounter this sensible legal 
view of the Supreme Court of the United States. 

Mr. Justice Nelson said: 

" It has been suggested on the argument here that this grant is a fictitious 
one — made by the governor to the secretary of the territory, according to the 
forms of law — for the purpose of defrauding the United States. One answer to 
the suggestion is, that no objection to the bona fides of the grant was taken before 
either of the tribunals below, where it should have been made if relied on by the 
Government, so as to have given the claimants an opportunity to have met it. To 
permit it to be taken in the appellate court, for the first time, where there is no 



opportunity for explanation, would be a surprise upon them of which they might 
justly complain. The commissioners say ' the grant is fully proven, and we find 
no cause to doubt its genuineness.' And the judges of the district court observe 



' the grant is fully proved ; nor is its genuineness called in question.' " (Th 
United States vs. Larkins, 18 How., 561.) 

And in United States vs. Rocha, et al., (9 Wall.,) Justice 
Nelson thus reiterates this sentiment: 

"Objection is made that there was no proof of the signatures of the officials to 
the expediente; but the answer is, that no objection of this kind was made in 
the court below ; nor indeed does it appear that any objection was made to the 
genuineness of the papers." [And see Sutter's case, 21 How., 174, 175.] 

Although Judge Clifford dissented, he did not dissent on 
this ground. 

You will remember, gentlemen, that when Mr. Shaw assserted 
this principle, in the opening, Mr. Evarts inquired if there was 
any authority to this point. Mr. Shaw, not having the books 
at hand, answered that it necessarily arose out of the statute. 
Did you not observe that when the learned Mr. Evarts came to 
make a speech, which was to be printed, he did not controvert 
the proposition? Bolder and more reckless men can assume 
any thing; but a man with a great reputation, like Evarts, could 
not afford to assail a rule found in the horn-books. 

XIII. But we, upon our side, have the right to insist upon 
another familiar principle of law: to invoke the special finding 
of the commissioners, and to insist upon a judgment, notwith- 
standing the verdict, (non obstante veredicto.) The existence of 
the expediente having been proven by the record, and the loss of 
the testimonio or second original accounted for to the satisfac- 
tion of the commissioners, with the law as announced in Fre- 



37 

mont's, Larkin's and Yorbo's cases, we had the right to claim 
the judgment upon that finding. 

We did so claim it upon a regular appeal to the district 
court. And when I say regular, I mean that the transcript of 
the record was filed in the district court without admitting the 
force of any of the vile and ad captandum insinuations which, 
from whatever quarter, are unworthy of a generous mind, and 
no way creditable to the bar or bench which indulges in such 
flings. I allude now to the malicious make-weights against 
Pacificus Ord, that he drew up the petition, signed by Crosby, 
to send the case to the northern district court, where, had the 
locus in quo given the jurisdiction, he might have prosecuted 
the claim with the utmost propriety. But, the land being in 
the southern district, the case was necessarily sent there. 
Here we find it. And whether it got there by the motion of 
Sloan or Hartman, or without any motion whatever, the carry- 
ing it, ipso facto, gave the jurisdiction under the act of 1852. 
Any reference, therefore, to the truth or lies of those who 
swore about it, is only useful to prove that it is impossible that 
Ord could be as great a knave as those are fools who have 
sought to impair the appeal on this ground. The appeal got 
regularly into court. (1 Brightly Dig., p. 141, § 53; 10 St., 
p. 94, § 12 ; Yturbide's Ex'rs vs. The United States, 22 How., 
290 ; Grisar vs. McDowell, 6 Wall., 374 ; U. S. vs. Richie, 17 
How., 533.) 

Here it was the duty of the judge to try the case, de novo, 
upon the evidence taken before the commissioners, and such 
new evidence as might be offered. (9 Stat., 631, § 9; 1 
Brightly's Dig., p. 110, § 31.) He could not disregard the 
evidence taken before the commissioners, and to which no ob- 
jection had been made. He could not try the question as to 
spuriousness of title in the absence of a plea by the United 
States alleging it. (Id.) He was not sitting there as a court 
of errors upon this evidence, which came to him in the form 
of a report of the commissioners. He was there to apply the 
law to these proofs and upon any new evidence which might 
be offered upon a trial de novo. (Id., and notes.) 

According to his record he thus performed his duty: 

" Vicente P. Gomez, appellant, ") 

vs. \ No. 393. 

The United States, appellees. J 

" Now, on this day, ttiis cause coming on to be heard, the parties appearing 
by their respective attorneys, the appellant by Sloan & Hartman, Esqs., and 
the appellees by P. Ord, United States district attorney, and after argument by 
counsel aforesaid the same is submitted to the court for final adjudication. 

"Whereupon the court, being fully advised in the premises, delivered its 
opinion confirming the claim of the appellant to the extent called for in the 



38 

transcript and papers, three leagues or sitios de ganado mayor, and a decree 
was ordered to be entered up in conformity to said opinion." 

This determined the right. No further action was neces- 
sary to enable Groinez to appeal on the question of quantity, 
or the United States to appeal upon the question of right. 
The quantity might be determined upon the survey. There 
were nunc pro tunc amendments of the 7th January and 5th 
of February, 1858. They are immaterial to my present pur- 
pose, and will not be noticed now. From the decree the 
United States appealed by regular order, duly certified in the 
record, on the loth March, 1858. I shall return to the ques- 
tionof fact hereafter. The United States failed to prosecute 
this appeal. For my present purpose, it is wholly immaterial 
whether that appeal was in fact taken, or the mandate right- 
fully annulled or not. I assume, however, that the records 
of the Government speak the facts: 

"ATTOKEY GENERAL'S DOCKET. 

"No. 569. Rejected 15th September, 1855. Transcript filed 15th September, 
1855. Appeal filed. Confirmed June 5, 1857. Docketed and dismissed 31st 
January, 1859, on motion of counsel for appellee." 

The mandate of the Supreme Court was thereupon issued, 
and it was subsequently filed in the district court for the 
southern district of California. The mandate of the Supreme 
Court, and the proceedings had thereon in the district court, 
are shown by the following from the records, already before 
your committee: 

"THE PRESIDENT OF THE UNITED STATES OF AMERICA. 

" To the Honorable the Judges of the District Court of the United States for the 
["l. s.] Southern District of California, greeting : 

'• Whereas lately, in the district court of the United States for the southern 
district of California, before you, in a case between Vicente P. Gomez, appellant, 
and the United States, appellees, wherein a decree was rendered in favor of said 
appellant. Whereupon the said appellees prayed an appeal, which was allowed 
by the said district court, to remove the said cause to the Supreme Court of the 
United States, as by the inspection of the transcript of the record of said district 
court, which was brought into the Supreme Court of the United States agreeably 
to the act of Congress, and the rules of the said Supreme Court in such case 
made and provided, fully and at large appears. And whereas, in the present 
term of December, in the year of our Lord one thousand eight hundred and 
fifty-eight, the said cause came on to be heard before the said Supreme Court 
on the said transcript of the record ; and it appearing that the appellants (the 
United States) have failed to have their cause filed and docketed in conformity 
with the rules of this court, it is now here ordered and decreed by this court 
that the appeal from the district court of the United States for the southern dis- 
trict of California be, and the same is hereby, docketed and dismissed, and that 
this cause be, and the same is hereby, remanded to the said district court. 
January 31." 

Thus stood the record, gentlemen, as it was and is. 

XIV. And now what wero the rights of the United States ? 



39 

To answer this question, I appeal from the special practice for 
a single State to the general practice of the court. I find a 
four-shotted gun in 20 Howard, 261, which, by permission of 
the court, I will fire off. It is a chain-shot charge, because 
it embraces four appeals, all upon the same ground. It deter- 
mines the rules of appeal, and the time within which appeals 
shall be taken. In the United States v. Pacheco, et al. y the 
whole effect of docketing and dismissing is explained. 

The cases were argued by Montgomery Blair, John J. Crit- 
tenden, Reverdy Johnson, and others. I will read what the 
chief justice said : (20 Howard, 261.) 

"A motion has been made to docket and dismiss this case. 

"It appears, by a certified copy of the record in the district court of the 
United States for the northern district of California, that a decree was passed by 
that court on the 22d of September, 1856, confirming the title of Pacheco to 
certain lands therein mentioned. 

" No appeal was taken by the United States at the term at which the decree 
was made, but an appeal was entered at the next succeeding term, in March, 
1857. 

" Pacheco, by his counsel, now moves to docket and dismiss the case, Upon two 
grounds : 1st. Because the appeal was not taken at the term at which the de- 
cree was rendered ; and 2d. If the appeal might legally be taken at the suc- 
ceeding term, yet no transcript of the record was filed here within the first six 
days of the present term of this court. 

"The first question raised by the motion depends upon the construction of the 
act of Congress of March 3, 1851, which authorizes an appeal to this court in 
cases of this description. The act gives the right in general terms to the party 
against whom the judgment is rendered, and does not limit the time within 
which the appeal shall be made, nor refer to any particular act of Congress by 
which the time shall be regulated. It must therefore be governed by the judi- 
ciary acts of 1789 and 1803, which regulate writs of error and appeals to this 
court from inferior tribunals. And by these acts the party may take his appeal 
at any time within five years of the passing of the decree by the inferior court. 

" The appeal in question was therefore made in time and this motion cannot be 
maintained on that ground. 

" The second reason assigned in support of the motion depends upon the sixty- 
third rule of this court. Under this rule, the appellee, in a case from Califor- 
nia, is entitled to have the case docketed and dismissed, if the transcript of the 
record is not filed in-this court within the first six days of the term next ensu- 
ing such appeal ; provided the decree of the court below was rendered sixty 
days before the commencement of the said term of this court. 

" As we have already said, the decree was rendered in September, 1856, and 
the appeal was taken in March, 1857. Consequently it was the duty of the ap- 
pellant in this case to file a transcript of the record within the first six days of 
the present term. This was not done. 

" And it appears that no transcript of the record has yet been filed by the ap- 
pellant. The appellee is, therefore, entitled to have the case docketed and dis- 
missed, under the rules above mentioned. 

" It is true he has not filed the certificate mentioned in the rule, but has filed 
a full transcript of the record. But the transcript shows all of the facts, which 
the clerk, by the rule, is required to certify ; and it has always been held by 
the court to be equivalent to the certificate which the rule prescribes. 

" It is proper, however, to add, in order to prevent mistake on this subject, 
that the only effect of docketing and dismissing a case under this rule is to 
enable the party to proceed to execute his judgment in the court below. It 



40 

removes the bar to farther proceedings in that court, which the appeal created, 
and does nothing more. And after the case has been docketed and dismissed, 
the party against whom the decree was rendered may still, at any time within 
five years from the decree, take a new appeal in the inferior court; and if he 
hies the transcript of the record in this court within the first six days of the 
term next ensuing his appeal, the appeal will be valid, and the case as fully 
before this court, for examination and revision, as if it had been brought here 
at the first term. The act of Congress authorizes the appeal at any time within 
five years, and the period allowed by law cannot be shortened by any rule or 
practice of a court. Nor was it intended to be diminished by the rules in ques- 
tion. And when an appeal is taken in the court below, if the appellee desires 
a speedy and final decision of the controversy, it is in his power to bring the 
case up to the next succeeding term of this court. 

"Indeed, it sometimes happens, under this rule, that the court permits the 
transcript of the record to be filed by the appellant, and the case docketed for 
argument, at the same term at which it had previously been docketed and dis- 
missed on the motion of the appellee. And where the appellant satisfies the 
court that the omission to file the transcript within the first six days was not 
owing to any fault or negligence on his part, the court has always allowed him 
to file it at the same term, and docket the appeal for trial, without putting him 
to the expense and delay of another appeal. 

" It follows, from what we have said, that, although the case before us must 
be docketed and dismissed, yet this will not prevent the United States from 
filing a transcript at the present term, and docketing the case for argument, if 
they can show that the delay has not arisen from any fault or negligence on 
their part. 

"And if they fail to do so, they may yet take another appeal, at any time 
within five years, and bring here "the decree of the district court for examina- 
tion and revision. And if the appellee, after the case is docketed and dis- 
missed, proceeds upon the decree of the district court, and obtains a patent for 
the land, his title will still be subject to the decision of this court, if the Gov- 
ernment shall hereafter bring up the case within the time limited by law. 

" We have deemed it proper on this occasion to enter the full explanation of 
the rule of court referred to, on account of the multitude of appeals which 
must unavoidably come up from the district courts of California, and which, 
in some shape or other, may be brought before this court upon motions to dis- 
miss." (20 Howard, 261.) 

Here, gentlemen, is a rule of law laid down which had to 
be enlarged from the original rule of appeals. It is a familiar 
one in this practice, that in ordinary litigations the second 
appeal brings up nothing except what is subsequent to the 
docketing and dismissing of the first. That is the universal 
rule of law. That rule was enlarged for the purpose of the 
California cases. Judge Black has told you, that if the At- 
torney General docketed and dismissed it was a retraxit on 
the part of the United States, and no subsequent appeal could 
be prosecuted; but if docketed and dismissed by the claimant 
the foregoing was applied. Whence comes this irregularity? 
The appeal is docketed and dismissed on behalf of the claim- 
ant. Nevertheless he takes his judgment and takes his man- 
date, and goes and obtains his patent, cum onere, that if the 
United States within five years prosecutes a second appeal 
and reverses the decree the patent falls to the ground. That 



41 

is all of the decision, hard as it is. In Castro vs. The United 
States, 3 Wallace, 50, the same principle is affirmed as to ap-. 
peal and citation, upon the authority of The United States vs. 
Hughes, 3 How., 534; The United States vs. Villabolos, G How., 
90; The United States vs. Curry, Id., 112; Steamer Virginia 
vs. West, 19 How., 182; Insurance Co. vs. Mordecai, 21 How., 
105; Mesa vs. The United States, 2 Black, 731. 

Here then was a certain and plain remedy which the United 
States, upon any discovery of wrong, might have pursued. 
It was to prosecute a new appeal within five years from the 
5th of June, 1857, or to be forever barred. Was it done? 
Let the record speak. 

Passing over all the other disgraceful facts, I state, from 
the record, that no second appeal was taken or attempted un- 
til the 25th of August, 1862, which was five years, two months, 
and twenty days from the rendition of the final judgment in the 
premises. " What is written is written," and it is an eternal 
record of fact, which no Joshua can roll back in the calendar 
of time. There has been a lugubrious wail that up to this 
time McGarrahan had prevented an appeal. And you have 
even been told that there was a constant struggle by the Gov- 
ernment to appeal, which McGarrahan and the officers of the 
court resisted by injunctions and other expedients. What do 
you think the philosopher Greeley would call this ? He would 
apply to it words more emphatic than polite, "This is the 
squarest kind of lying." 

McGarrahan could have opposed no objection until after the 
appeal was granted. 

Then it was his objection came under the stipulation with 
the district attorney, his counsel, and the clerk. 

Some six weeks later, when the claimant was informed of 
these extraordinary proceedings, he procured from the district 
attorney, then at Los Angeles, (October term,) a written stipu- 
lation that the transcript should be withheld and all further 
proceedings stayed until the next terra of the court, to give the 
claimant an opportunity to move to set aside the ex parte order 
of appeal. 

This stipulation, it will be seen, was made at Los Angeles, 
(a distance of about four hundred miles from Monterey,) and at 
another term of the court, after the ex parte order of appeal had 
been obtained. At the following term of the court, held in the 
month of December, 1862, at Los Angeles, the argument to 
vacate the allowance of the ex parte order of appeal was regu- 
larly heard in the district court, the district attorney appearing 
on behalf of the United States; and the court " ordered that 
the appeal taken on the 25th day of August, A. D. 1862, by the 
4 



42 

United States to the Supreme Court of the United States, from 
the final decree of confirmation herein, be vacated and set 
aside. And it is further ordered, that the order of this court, 
made on the said 25th day of August, A. D. 1862, allowing 
said appeal, be, and the same is, vacated and set aside, and the 
motion of the United States district attorney for leave to take 
an appeal on behalf of the United States to the Supreme Court 
of the United States from the said final decree be, and the same 
is, denied." 

[Mr. Shaw. Was not that stipulation a waiver of the ex 'parte 
order of appeal ? 

Mr. Paschal. I have no doubt that it was, and as binding as 
Mr. Black could have made it. J 

But I am going on now on a principle about which there can 
be no dispute. It will be seen that all the stuff about McGar- 
rahan's opposition to an appeal is founded on the veriest un- 
truth. He could have made no opposition until after the first 
motion for an appeal was made, which was five years two 
months and twenty days after the judgment was rendered. 
That opposition led to estreating the appeal order improvi- 
dently made. The opposition then was to obtaining a false 
record — a record which showed that there was an appeal when 
there was not. An effort to get a record without the rescind- 
ing order, which was a contempt of court. An effort to bully 
the clerk and cajole the judge in the name of the Attorney 
General. 

I have seen the effect which this confusion about dates and 
facts produced upon some members of the committee, by con- 
founding things, which are an insult to all judicial proceedings, 
with the things which the United States had the right to do, 
had it been done in time. Even Judge Clifford was misled into 
statements wholly unsupported by the record. 

XV. And now, before reviewing the many insults to legal 
minds, I wish here to state that, in deciding that the five years 
to appeal had elapsed, and in revoking his inconsiderate order 
of appeal, Judge Haight decided upon a matter which it was 
his duty to decide, and from this decision there could be no 
appeal or revision. 

If wrong as to time, in aid of its appellate jurisdiction, the 
Supreme Court might have granted a mandamus to compel 
an appeal, (5 Pet., 190;) but it has never claimed the power to 
otherwise revise the order refusing it. And when the judge 
and the clerk decided that there was no appeal, they decided 
upon a matter which belonged to their exclusive jurisdiction. 
And the hectoring letters of the Attorney General, by whom- 
soever written — never by Bates — were met by the judge and 



43 

the clerk as they deserved to be met. And when the surveyor 
general decided that there had been no second appeal and 
that the time for appeal had elapsed, he decided upon a mat- 
ter within his jurisdiction, and, having decided upon the truth, 
his decision was entitled to more respect than the reported 
anomalies which are based upon false records and false sug- 
gestions. 

And on the 29th of December, 1862, speaking as one of the 
President's advisers, and for the President, with these records 
before him, and after full and able discussion by counsel for 
the claimant, and by the Attorney General and the "special 
counsel of the United States," Secretary Smith decided that 
the time had elapsed. He spoke for a co-ordinate department 
of the Government officially, and about a matter which the 
Supreme Gourt had no power to disturb. 

Thus spoke the Secretary of the Interior: 

"My conclusion is that the decree of the district court for the southern dis- 
trict of California, confirming the grant, has become final. The United States 
has no longer any interest in the controversy. No claim of third parties has 
been interposed. 

" The suggestions of fraud in the grant, or in the manner of procuring its 
confirmation, are res adjudicata, and I am unable to discover any reasons why 
a patent should not be issued in conformity with the decree of the court and 
the survey. 

" You will therefore issue a patent for the land, in accordance with the survey as 
reported by the surveyor general. 

" The papers pertaining to the case are herewith returned to your office. 

" Very respectfully, &c, Caleb B. Smith. 

" To the Commissioner General Land Office." 

This view was affirmed by Secretary Usher, on the 4th March, 
1863, (Fortieth Congress, 3d Session, Ex. Doc 48, pt. 3, pp. 
32, 33.) 

And finally the patent was engrossed on the 15th March, 
1863. This decision of the Secretary of the Interior, as to 
the right to a patent for the land in controversy, was final and 
conclusive, and the patent should have issued in accordance 
with that decision. The Secretary of the Interior had juris- 
diction of the question upon which the right to a patent de- 
pended, and having decided it in his favor, no other officer or 
tribunal had authority to revise or reverse it. (United States 
vs. Jones, 8 Peters, 375, 378.) 

The rule is better stated, and in language which speaks 
trumpet-tongued in favor of the action of this co-ordinate de- 
partment of the Government, and against the judgment of the 
Supreme Court when it had no jurisdiction, in the great case 
of Wilcox vs. McConnel. (13 Peters, 510.) 

Some of you, gentlemen, are familiar with that case. It has 



44 

been a leading one ever since. Here is the language of the 
chief justice: 

" Before we proceed to inquire whether the land in question falls within the 
scope- of any one of these prohibitions, it is necessary to examine a preliminary 
objection which was urged at the bar, which, if sustainable, would render that in- 
quiry wholly unavailing. It is this, that the acts of Congress have given to the 
registers and receivers of the land offices the power of deciding upon claims to 
the right of preemption; that upon these questions they act judicially ; that, no 
appeal having been given from their decision, it follows as a consequence that it 
is conclusive and irreversible. This proposition is true in relation to every tri- 
bunal acting judicially, whilst acting within the sphere of their jurisdiction, 
where no appellate tribunal is created; and even when there is such an appellate 
power, the judgment is conclusive when it only comes collaterally into question, 
so long as it is unreversed. But directly the reverse of this is true in relation 
to the judgment of any court acting beyond the pale of its authority. The prin- 
ciple upon this subject is concisely and accurately stated by this court in the case 
of Elliott ei al. vs. Peirsol ct at., 1 Pet., 340, in these words: 'Where a court has 
jurisdiction, it has a right to decide every question which occurs in the cause; 
and whether its decision be correct or otherwise, its judgment, until reversed, is 
regarded as binding in every other court. But if it act without authority, its 
judgments and orders are regarded as nullities. They are not voidable, but sim- 
ply void.' " (Wilcox vs. Jackson, 13 Pet., 510, 511.) 

And we claim that these decisions were not only made by 
executive officers for the President, but that they were made 
with the sanction of the President, after full discussion with 
the Attorney General, the volunteers, the land officers of the 
Government, and the Secretary of the Interior. 

XVI. And here, as a coarse attack has been made upon a 
great and good man, which would not have been made had 
that gentleman been present, from sheer w T ant of time I must 
beg to put in my remarks upon the statement as to General 
Sickles. 

To name of Sickles should itself be enough to repel any as- 
persions by intervenors, whose practices have been exposed. 
Mr. Black, in his unsworn statement, says, that when Mr. 
Sickles, then a member of Congress, first called with Mr. 
Meagher, to discuss the propriety of docketing and dismissing 
the cause, he disclaimed being counsel, but only came as the 
friend of Meagher. This statement is perfectly consistent 
with the fact that some days later Sickles had the case dock- 
eted and dismissed the cause. Whether he was employed or 
not, he certainly had the right to do that, unless it be intended 
to deny that members of Congress are debarred from taking 
cases in the courts against the United States where the Gov- 
ernment is a party. It takes a bold man to assert that in the 
face of the illustrious examples who defended the assassina- 
tors of the President, and who are daily engaged in all sorts 
of defenses. But I did not understand the objection to be to 
what Sickles did in court, but to what he urged upon the 



45 

President long after he ceased to be a member of Congress. 
The fact is, that Secretary Smith had decided that a patent 
ought to be issued, which opinion had been confirmed by Sec- 
retary Usher, and a patent had been engrossed. But owing 
to the interference of the Attorney General's office, then 
wielded by Black, who signed himself "special counsel of the 
United States," the patent had been refused. As the signing 
of the patent devolved upon the President, the question was 
referred to him and discussed by counsel. In his speech to 
the Senate Committee last year, Mr. Coffey spoke of that dis- 
cussion, and said Lincoln opened it by saying that the lawyers 
wanted to pettifog him into issuing a patent. Coffey does not 
put this statement into his printed argument, but he admits 
the discussion. General Sickles was not then a Congressman, 
but a soldier. And surely there could be no impropriety in 
his urging upon the President the performance of his dut} 7 . 
Mr. Coffey, who says he was present, does not deny that the 
President gave his opinion in favor of the patent, but reasons 
that there was no written order. Neither the Attorney Gen- 
eral, the assistant, or the "ex" has ever denied this, although 
the statement of Sickles has long been published. But now, 
when Sickles is far away, counsel deny what was conceded a 
year ago, because the order was not in writing. It could not 
have been necessary, when the colloquy was with two officers 
of the President's Cabinet and opposing counsel. It was 
enough for that just man to say to the Secretary, "Issue the 
patent." Mr. Lincoln could as well calculate time as any 
judge or court. He knew when five years expired after the 
5th of June, 1857. He knew that, if no appeal had been 
taken before the 5th of June, 1862, none could be taken. 
Neither Black nor Coffey would have dared to have uttered, 
in the presence of Abraham Lincoln, that they were the hired 
counsel of conspirators and squatters to defeat the treaty of 
Hidalgo. The one had shielded himself with the affix "special 
counsel of the United States," the other was assistant Attor- 
ney General. The President saw the right and directed ac- 
cordingly. But counsel seemed to think that Sickles must 
be mistaken by one year. There seems to be no foundation 
for this, and Coffey admits the contrary; but, if it were so, 
who that is familiar with judicial proceedings would think it 
strange? 

A sneer was indulged in because, in his statement, Sickles 
admits that he had some interest with McGarrahan. The 
barbarous days are passing away when mere interest renders 
a truthful man incompetent. Men are to be credited because 



46 

of their characters for honor, truth, and veracity. Daniel E. 
Sickles has been too severely tried to have his evidence weak- 
ened by the fact that he admits some interest, particularly 
when years have passed away since his statement was pub- 
lished, and no one could come forward to deny it. The 
statement is valuable, because it proves that the person who 
must do the last final act in issuing a patent, and who was a 
co-ordinate branch of the Government, felt it his duty to pro- 
tect an interest which arose under a treaty sanctioned by his 
predecessor. It was urged that he would not have been thus 
discourteous to the judiciary, who had already taken cogni- 
zance of the matter. That same great man had felt it to be 
his duty to disregard a habeas corpus directed to him by the 
head of that same judiciary. He had been obliged to go 
ahead of Congress, and proclaim liberty to the black man, and 
thus, more than by any other act, to save the nation. He 
could not pause for courtesy when a duty pointed out his 
course. 

Besides, it is not true that at the time the patent was en- 
grossed the Supreme Court had already taken jurisdiction. 
Messrs. Sawyer and Kellog, with the same evidence before 
you, thus dispose of the dates: 

" It is to be noticed in this case that the action of the court of California is 
fully vindicated in the letter of the judge and clerk. The Secretary of the 
Interior, Hon. Caleb B. Smith, on the 29th of December, 1862, took the same 
view, and held that the title stood confirmed and the time for appeal had 
elapsed, and ordered a patent. And this having been objected to on account 
of the survey, Mr. Usher, on the 4th of March, 1863, reasserted the position, 
and held the survey to have been properly made, and ordered the patent to be 
issued. 

" The patent was engrossed on the 14th March, 1863. It was insisted in 
argument that this was after the Supreme Court took jurisdiction of the case 
by appeal. But a certificate from the clerk of the court showed that the tran- 
script was not filed until 29th February, 1864. 

" Thus the officers whose duty it was to act, and the co-ordinate department 
of the government to which jurisdiction was properly given under the law, had 
decided the right, and ordered a patent before the court pretended to take 
jurisdiction. It is doubtful if subsequent action could affect this right." 

XVII. Stress is laid on the fact that the engrossed patent 
of an anterior date had a kind of qui qucedam recitation; that 
it was not conclusive as to its locality, and only prima facie 
evidence of right. Of course no descriptive patent is ever con- 
clusive as to its precise locality. The land on the ground is 
to be found by tracing the footsteps of the surveyor; and even 
a patent may be defeated if the land was reserved, or the officer 
granting it had no jurisdiction of the subject-matter. The 
authorities of Stoddard vs. Chambers, Wilcox vs. McConnell, 
and Texas vs. Delesdenier, cited iu my printed argument, all 



47 

settle this. Patents are parchments, to bo sure; but they are 
subject to the same objections as judgments. 

And is there no importance to be attached to the opinions 
of the clerk, Wheeler; of Judge Haight, judicially expressed; 
of Secretaries Smith and Usher; and of President Lincoln, 
that the time for appeal had elapsed? And that the patent 
was ordered and engrossed? Are they idle words, which touch 
not the conscience of the body politic? Are they mere opin- 
ions, which this committee and Congress may disregard as 
unworthy of consideration ? 

Each and all of these men, in their respective places, were 
called upon to act officially; to determine upon the law and 
the facts as they then existed; and if it be worth anything, 
the opinion in Wilcox vs. McConnell, (13 Peters,) holds that 
even the land officers in such matters act judicially. The 
cabinet officers acted in their departments upon appeals from 
the Commissioner of the General Land Office. Each was act- 
ing under the Constitution and laws, and in matters pertaining 
to his official duty, in executing what Congress had committed 
to him in relation to the "territory and other property of the 
United States " acquired under treaty stipulations. The Presi- 
dent (the only officer so sworn) was acting under his constitu- 
tional oath "to preserve, protect, and defend the Constitution 
of the United States." By that instrument he was bound to 
recognize treaties as a part of the supreme law, and he was 
obliged to take care that the laws be faithfully executed. And 
I maintain, as the Supreme Court has been obliged to concede, 
that when the President has decided to do or not to do a par- 
ticular thing the court can no more reverse or command the 
President than the President can reverse or command the 
court. The very opinion in Cox vs. McGarrahan asserts the 
doctrine, sub toto coslo, that there is no power in the court to 
command or to restrain the President to issue, or from issuing 
a patent. Whether, then, Lincoln spoke before or after the 
court took jurisdiction, or before or after the last decision of 
that court, his opinion is as persuasive to this Congress as the 
judgment of that court can be. Certainly, under the circum- 
stances, its moral force must be even greater. 

We submit that the conclusion is thus established, that the 
department of the Government which had the exclusive juris- 
diction, after the lapse of five years from the confirmation of 
the title on the 5th June, 1857, has decided in favor of the 
right to the patent ; while the department which had no juris- 
diction, because of the lapse of time, and because there was 



48 

neither appeal nor notice of appeal, has not legally decided 
anything about it. 

XVIII. I must now glance hastily at the other facts, which 
we say constitute great hardships in this case. It will be re- 
membered that McGarrahan purchased after the decree of con- 
firmation by the district court; that he purchased upon the 
equity of the original title and the regularity of the proceed- 
ings of confirmation ; that until the time of his purchase he 
had been a stranger to all the actors in obtaining the title and 
the confirmation ; that he purchased the whole grant for a 
valuable consideration, subject only to the contract of Ord, 
about which he knew nothing, for the title was then not upon 
the record; that his first agency in connection with the judi- 
cial proceedings wa3 in procuring the record in the most reg- 
ular and proper manner, making the usual appeal to the Attor- 
ney General to docket and dismiss, which would amount to a 
retraxit of the appeal by the Government, and meeting no 
opposition, his own counsel docketed the case, and it was dis- 
posed of in the manner already shown. 

Mr. Shaw has so thoroughly and accurately grouped the 
facts in this and the future connection that I need only deal 
in generalities. 

I may class together the action of the district judge in set- 
ting aside his judgment of confirmation, and the action of the 
Supreme Court in revoking its order and recalling its mandate. 
I state, that according to the constitution of the courts, the 
law and the practice, both these orders were without power, 
and null and void, because made after the terms at which the 
respective judgments were rendered. 

And first as to the action of the Supreme Court, upon the 
motion papers reported in 23 Howard, 326. The motion of 
the Attorney General was based upon the assumed grounds that 
no appeal had been granted, as had been certified in the record; 
that when the record was brought up, there was a motion made 
by Mr. Stanton pending for a new trial or a rehearing, and 
that the court below had already granted the rehearing. 

Before discussing the legal untruth of all these grounds, it 
is enough to say that an appeal had been granted, as is now 
proved; that a motion filed in vacation, (and I will presently 
show that this was never filed,) and after appeal, was not a part 
of the record; and that it was not true that at the time of 
docketing and dismissing a rehearing had been attempted, or 
that any motion therefor was pending. 

I admit that after an appeal or writ of error has brought a 
record to the Supreme Court, that court may, before hearing 



49 

the cause, or perhaps after judgment, and during the term, 
hear evidence to prove that the court has no jurisdiction; for 
that no appeal or writ of error, in fact, has been granted; that 
no notice has been given; that no supersedeas bond has been 
executed; that the pretended bond has been forged or some 
other fact which goes to show that the court has no jurisdic- 
tion. (Hart v. Mills, 31 Tex., 304.) Or, it may hear affidavits 
in favor of its own jurisdiction. (Williamson vs. Kincaid, 4 
Dall., 20; Hagan vs. Folsom, 10 Pet., 160; United States vs. 
Brig Union, 4 Or., 216; Wilson vs. Daniel, 3 Dall., 401; Lord 
vs. Vesey, 8 How., 251; Harris vs. Rector, 5 Tex., 533; Brown 
vs. Torrey, 22 Tex., 55.) But not to contradict the record, nor 
will it hear evidence, aliunde, that the court below had no juris- 
diction, or that there was fraud in the judgment, or other matter 
which might be the subject of original jurisdiction. (Same 
cases.) 

Nor can the Supreme Court at a subsequent term entertain 
a motion and hear facts to show that the judgement was fraudu- 
lently obtained, or its own jurisdiction abused; because that 
is an exercise of original jurisdiction. This is no question of 
practice, but of power. 

This learned committee need not be told that the original 
jurisdiction of the Supreme Court is confined to cases affecting 
ambassadors, other public ministers, and consuls, and to those 
in which a State shall be a party. (Paschal's Annotated Con- 
stitution, p. 204, Art. Ill, Notes 210, 211.) I can best state 
my idea by reading a few sentences from these notes : 

" The Supreme Court has no original jurisdiction except in cases affecting am- 
bassadors, &c., and where a State of the Union is plaintiff. (United States vs. 
Ravara, 2 Dall., 297 ; Marbury vs. Madison, 1 Dall., 137.) And Congress can- 
not enlarge this original jurisdiction." (Osborn vs. Bank of United States, "9 
Wheat., 820 ; Curtis' Com., g 159.) 

" The Supreme Court possesses no appellate power in any case, unless con- 
ferred upon it by act of Congress, nor can it, when conferred, be exercised in any 
other mode of proceeding than that which the law prescribes." (Barry vs. Mer- 
cien, 5 How., 119, and authorities collected in Note 211, of Paschal's Annotated 
Constitution.) 

XIX. I am aware of the stress which the opposite party lays 
upon the mere fact that the Supreme Court did act ; that it took 
jurisdiction ; and having determined in favor of its own juris- 
diction, this committee cannot now determine that question. 
But this is a mistake. There is not even a question of deli- 
cacy about it. It is not the revision by one department of 
the Government of the acts of another. It is a question 
which at all times and in all places presents itself, whenever 
and wherever the judgment of a court is offered as a plea Pes 
5 



50 

adjudicata between the parties. All that can be said against 
this position is, that where a tribunal has exercised jurisdic- 
tion to determine a matter prima facie, that tribunal had the 
jurisdiction. But this is prima facie evidence of the slight- 
est kind, and it has no application to tribunals of special 
limited jurisdiction. It neither binds that tribunal nor any 
inferior or concurrent tribunal, if the jurisdiction be after- 
wards called in question. That this is so as to inter-State 
judgments, will be seen in the numerous authorities collected 
in Paschal's Annotated Constitution, note 218, pp. 213 to 215. 

From this collection it will be seen that in every case, 
wherever it has been deemed necessary, the question of juris- 
diction over the subject matter and the person has always 
been considered an open question. No stronger case can be 
found than that of Horan vs. Wahrenberger, 9 Tex., 313, 319. 
This case reviews 4 Phillips' Ev., Cowan & Hill's notes, 12, 
206, 214; Eliot vs. Piersol, IPet., 328,340; Voorhies vs. Bank 
of the United States, 10 Pet., 474; Williamson vs. Berry, 8 
How., 540; Webster vs. Reid, 11 How., 437, and other cases. 
The point really decided is, that in the absence of jurisdiction 
the Supreme Court will not respect its own judgments. 
Another point is, that an appellate court has the power to re- 
vise the judgments of other tribunals, but not its own, after 
the expiration of the term. And still another and greater 
point, that the question of jurisdiction is always open to col- 
lateral attack, whenever and wherever such judgment is 
offered as evidence. I beg the committee to read this able 
review of all the other cases. 

The case of Horan vs. Wahrenberger was a peculiar one. 
Horan had sued Wahrenberger for a debt before a justice of 
the peace, and obtained judgment. Wahrenberger appealed 
to the district court, under a statute allowing it. (Paschal's 
Dig., Art. 1546, Note 557.) Upon a trial, de novo, the judg- 
ment was for Wahrenberger. Horan in his turn appealed to 
the supreme court, which reversed the judgment of the dis- 
trict court, and rendered a judgment against the defendant 
in accordance with the judgment of the justice, upon which an 
execution was issued, and the property of the defendant was 
sold and purchased by the plaintiff, who brought ejectment, 
•when the defendant attacked the judgment and sale upon the 
ground of want of jurisdiction in the district court, and con- 
sequently in the supreme court. Upon the principle in Titus 
vs. Latimer, 5 Tex., 433, it was held, that the judgment of the 
supreme court was a nullity. 

The principle which had been decided in Titus vs. Latimer 



51 

was, that the statute which gave an appeal from the justice to 
the district court was unconstitutional ; and that because the 
district court possessed no jurisdiction, a quo, the supreme 
court had none, and its own judgment was void, and hence the 
execution and sale were void. 

A few quotations from the opinion of Chief Justice Hemp- 
hill, (afterwards United States Senator,) and a man of remark- 
able learning, will show that the principle, that the question 
of the jurisdiction of every court is always open whenever 
and wherever made. 

The chief justice said: 

" In support of the position that the judgment under which the sale was 
effected is a nullity, the appellee refers to the decision of this court in Titus vs. 
Latimer, 5 Tex., 433, in which it was held that the district court had no power, 
by appeal, to take cognizance of judgments rendered in inferior jurisdictions, 
with the exception of judgments in inferior tribunals exercising jurisdiction in 
matters pertaining to the estates of deceased persons ; and that the law, vesting 
such appellate power in the district court, was unconstitutional. 

" On the principles settled in this case, it is very clear that the district court 
acted without authority in revising the magistrate's judgment upon its merits, 
and that the judgment of the supreme court was equally without authority. For 
if the district court, or the court a quo had no power, the appellate court had 
none. (Aulanier vs. The Governor, 1 Tex., 653; 3 Tex., 157.) And it is equally 
clear, that this judgment, without lawful power, is a nullity, and cannot be useel 
as evidence in support of the title set up by the appellant. (Cowan & Hill's 
Notes, vol. 4, p. 12.) 

" The principle that a judgment of a court acting without authority is null 
seems to be of universal application. The only difference in its effect on the 
judgments of general and of specially limited jurisdictions is, that, in support of 
the former, jurisdiction is presumed, while in the latter it must be shown ; but 
whenever the want of power is made to appear, its legal effect is the same, what- 
ever may be the character of the jurisdiction. (Cowen & Hill's Notes, vol. 4, 
pp. 206, 214, and the cases cited.) The cases are numerous in which the effect of 
a want of authority is enunciated ; and it is thus perspicuously stated in Elliot 
vs. Piersol, (1 Pet., 328-340.) ' Where a court has jurisdiction, it has a right to 
decide every question which occurs in the cause ; and whether its decision be 
correct or otherwise, its judgment, until reversed, is regarded as binding in every 
other court. But, if it act without authority, its judgments and orders are 
nullities. They are not voidable, but simply void, and form no bar to a re- 
covery sought even prior to a reversal, in opposition to them.' 

" The appellant contends that a judgment of the supreme court having general 
appellate jurisdiction is conclusive, unless set aside before the expiration of the 
term, and that no court can look behind it ; and, in support of this position, 
refers to the case ex parte Tobias Watkins, (3 Pet., 193.) There are some strong 
expressions in the opinion as to the absolute conclusiveness of judgments by 
courts of general jurisdiction, unless they be reversed on error or appeal. 
Whether they are reconcilable with other cases in the same tribunal I shall not 
attempt to discuss. There are repeated recognitions in the opinions of that court 
of the general rule as to the legal consequence of the want of power, whether the 
jurisdiction be genera] or special. In Voorhies vs. The Bank of the United 
States, (10 Pet., 474,) it is said, in substance, that the only difference between 
the supreme court and other courts is, that no court can revise the proceedings 
of the supreme court, but that that difference disappears after the time prescribed 
for a writ of error or appeal to revise those of an inferior court of the United 
States or of any State. They stand on the same footing in law. If not warranted 



52 

by the constitution or law of the land, the most solemn proceedings of the su- 
preme court can confer no right, which is denied to any judicial act, under color 
of law, which can properly be deemed to have been done coram nonjudice; that 
is, by persons assuming the judicial function in the given case without lawful 
authority, In "Williamson et al. vs. Berry, (8 How., 540,) it was declared, in the 
opinion of a majority of the court, to be a "well-settled rule in jurisprudence, 
that the jurisdiction of any court exercising authority over a subject may be 
inquired into in every other court, when the proceedings in the former are relied 
upon, and brought before the latter, by a party claiming the benefit of such pro- 
ceedings. The rule prevails, whether the decree or judgment has been given in 
a court of admiralty, chancery, ecclesiastical court, or court of oommon law, or 
whether the point ruled has arisen under the laws of nations, the practice in 
chancery, or the municipal laws of States." (3 Dall., 7; 4 Cranch, 241; 13 Pet., 
499 ; 3 How., 750.) The rule thus stated is sufficiently broad to cover the judg- 
ments of all courts, unless, indeed, there be a court whose jurisdiction is unlimited. 
"Another position assumed by the appellant is, that it is no objection to his 
title that the law by which appeal was had from the justice's court and final 
judgment in this court, was unconstitutional ; or, in other words, that where a 
law, though unconstitutional, gives jurisdiction, the judgment is not a nullity. 
In support of this view the case of Webster vs. Reed (1 Iowa, 466) is cited. 
This case was revised on error in the Supreme Court of the United States, and 
the judgment of the lower court was totally reversed. The judgments which 
had been supported by the lower court were by the Supreme Court declared 
nullities ; and it was also held, that when a judgment was brought collaterally 
before the court, as evidence, it may be shown to be void on its face, for the 
want of notice to the person against whom it is recovered or for fraud." 

XX. The same enlightened tribunal, in Chambers vs. Hodges, 
3 Tex., 528, has exhausted the leading authorities upon the 
power of the Supreme Court over its judgments and man- 
dates after the expiration of the term. In the very first sen- 
tence of the opinion the learned chief justice reaches the 
very marrow of the whole question. 

'• The jurisdiction of this court is exclusively appellate, but its revisory power 
is to be exerted, not over its own judgments, but over those of inferior jurisdiction. 
These it has the power to affirm, reverse, and reform, or to remand the cause for 
a new trial and a more definite decision ; but the statute has conferred upon it no 
authority to revise its own judgments upon the merits or to effect any material 
modification to any material thing therein determined." 

In favor of this general proposition was invoked the case of 
Sibbald vs. The United States, 12 Peters, 492; Cameron vs. 
McRoberts, 3 Wheat., 591; The Bank of the Commonwealth 
vs. Wistar, 3 Pet., 431 ; Ex parte Sibbald vs. The United States, 
3 Pet., 491 ; The Palmyra, 12 Wheat., 10 ; Martin vs. Hunter, 
7 Wheat., 355, cites Hudson vs. Guestier, 7 Cranch, 1; Brow- 
der vs. McArthur, 7 Wheat., 58, 59; The Santa Maria, 10 
Wheat., 443; and, in the House of Lords, Burnas vs. Donegan, 
3 Dow., P. C, 157; and in New York, Ex relatione The Attor- 
ney General vs. The Mayor and Aldermen of New York City, 
25 Wend., 253; and also Jackson vs. Ashton, 10 Pet., 481; 
Ex parte Fontenberry vs. Foquer, 5 Ark., 202; Rawdon et al. 
vs. Ileal Estate Bank, 5 Ark., 573. 



53 

Upon these authorities, so full and so conclusive upon the 
point, Chief Justice Hemphill reached the conclusion, that 
after the expiration of the term at which a judgment was 
rendered the supreme court had no power to recall its man- 
date. 

The chief justice said: 

"There must be some period at which litigation shall cease and controv 
rights be formally disposed of and settled, and this period seems, on principle, 
to be contemporaneous with the accomplishment of the act for which the powei 
has been exerted. The statute forbids no such conclusion, and we may 
hold that, when the judgment of the court is fully settled, its minutes ent 
and authenticated as a record, and the term is closed, the court has no furthe 
power over the decree for the purpose of revision or modification upon thu 
merits; and that the matters therein disposed of are finally settled, and t . 
rights adjudicated irrevocably concluded and established. 

"This limitation, upon the authority of the court will not prevent the correc- 
tion of clerical errors or mistakes, or defects of form, or the addition of sue! 
clause as may be necessary to cairy out the judgment of the court, or to declare 
a judgment null and voict which was rendered in a case not legally before tha 
court. 

"These doctrines are in entire conformity with the principles established in 
decided cases of the highest authority. In the case ex parte Sibbald vs. Tl e 
United States, (12 Peters, 492,) it was declared that the Supreme Court had no 
power to review their own decisions, whether in a case at law or in equity. 
That no principle was better settled, or of more universal application, than that 
no court can reverse or annul its own final decrees or judgments for errors oi 
fact or law, after the term in which they have been rendered, unless for clerical 
mistakes. (3 Wheat., 591; 3 Peters, 431.) Or to reinstate a cause dismissed by 
mistake, (12 Wheat., 10;) and that no substantial change or modification could 
be made affecting the judgment in any material thing. To this rale, as a gene- 
ral one applicable to all courts, bills of review in equity, and writs of error 
coram nobis at law, were stated to be exceptions. That inferior courts could 
not vary the decree, or examine it for any other purpose than execution, or give 
any or other or further relief, or review it upon any matter decided on appeal for 
error apparent, or intermeddle with it further than to settle so much as has been 
remanded. That after a mandate no rehearing has ever been granted in the 
House of Lords, (3 Dow. P. C, 157;) and, on a subsequent appeal, nothing i. 
brought up but the proceedings subsequent to the mandate. (5 Cranch, 316; 7 
Wheat, 58, 59; 10 Wheat., 443.) 

"In the case of the people ex relatione the Attorney General vs. The Mayor 
and Aldermen of the City of New York, (25 Wend., 253,) an application was 
made at the next term after the decision for a rehearing, and the question of the 
legal and constitutional rights of the court to open and reverse its judgments 
was fully considered; and it was held that the court had no legal right or power 
to grant a rehearing upon a writ of error after a final judgment has been pro- 
nounced upon the merits of the case, and has been regularly settled and entered 
of record in the form required by law. 

" It is stated that no rehearing has been granted in the House of Lords, upon 
writs of error, for several hundred years past; that, upon the appeals from the 
court of chancery, the House of Lords exercised the power of granting rehearing^ 
down to the latter end of the seventeenth century; that since that time a cast 
had not been found in which a rehearing was granted, even in an equity 
upon the merits. But, in some few cases, mere defects in form have been cor- 
rected, or a new clause added to the decree to carry out the judgment of the 
House of Lords upon the appeal. In the opinion reference is made to 'Sydney 
on Appeals,' and ' Palmer's Practice of the House of Lords,' and it is stated tha 
these writers consider it the settled practice in the House of Lords for nearly a 



54 

century and a half past, that there can be no rehearing or review of the cause 
tne merit? after the minutes of the judgment have been settled and directed 
entered. That, according to Sydney, when the minutes of an order have 
been read at the table of the House of Lords, it is considered final and unalter- 
able, even upon appeals from chancery. 

"In Bernal vs. The Marquis of Donegal, where a mistake in drawing up the 
order on appeal was corrected, it was said, by Lord Redesdale, that the judg- 
ment upon the merits could not be reversed, although from misapprehension 
of counsel, in supposing that the case would be disposed of upon a matter 
of form merel} r , the merits of the case had not been fully argued by such counsel 
at the bearing. It was also stated as the uniform practice of the court of errors 
in New York, so long as the writer of the opinion had been a member, to refuse 
an application for a rehearing after the final judgment of the court has been 
drawn up and settled; although, as to mere clerical errors and mistakes of form 
only, the order has been considered amendable so long as the remittitur remained 
under the control of the court. 

"We have referred to this case the more fully, as the works treating of the 
practice in the House of Lords are not accessible to the court, and perhaps not 
to the profession generally, and because the application is parallel to the one 
before the court. 

"In the case of Thomas Jackson et al. vs. Wm. E. Ashton, (10 Peters, 481,) it 
was held that, after a case has been dismissed for want of jurisdiction, the plead- 
ings having been technically defective, the court will not, at a subsequent term, 
allow them to be amended, and the case to be reinstated on the docket, as this 
would be in effect a reversal of the former decree ; and that the court had no 
power over its decrees after the term had passed and the cause has been dis- 
missed or otherwise finally disposed of. (See Fontenbery vs. Foquer et al., 5 
Aikansas Rep., 202.) 

" One of the grounds of application in this case, and upon which it is supposed 
that we are not precluded from judicial cognizance of the former judgment, is, 
that the mandate of the court was dated one year after the time of its issue. 
This may be good ground for revoking the mandate and ordering another to 
and might induce the court the more readily to correct clerical errors or 
mistakes, but would confer no authority to revise the merits of the cause, or 
materially modify the judgment. The power of the court for that purpose ceases 
after the expiration of the term in which the judgment has been rendered." (Coke 
on Littleton, 260.) 

This ivS precisely the doctrine in Stewart et al. vs. Agnew, 1 
Shaw, 413, and in White vs. Courtenay, 4 House of Lords 
Cases, 313, cited by Mr. Justice Wayne in United States vs. 
Gomez, 23 How., 340. The first was purely and entirely the 
exercise of power to amend the decree. (1 Shaw, 413.) The 
other might afford a reason why the court might regard its 
judgment in the Gomez case, 23 How., as a nullity; because 
that was obtained by fraud, false suggestion, perjury, and the 
exercise of original jurisdiction. But at last the power was 
but to amend the errors of a decree upon the principles which 
are stated with all their exceptions by Chief Justice Hemphill. 

In Rawdon. Wright, and Hatch vs. The Real Estate Bank, 
5 Ark., 573, the case had been tried and judgment pronounced 
in the supreme court. Rawdon, Wright, and Hatch moved for 
a rehearing. According to an established practice in that 
court, the motion to rehear was continued until the next term. 



55 

When the motion to rehear came on to be considered, Judge 
Paschal denied the power to rehear at a subsequent term, and 
discussed the leading cases reviewed by Justice Hemphill, to 
establish a want of power. But in deference to a practice of 
taking such motions under advisement he consented, reluct- 
antly, to reopen the case. Judge Sabastian, however, at a sub- 
sequent session, denied the power, and stated the doctrine, 
that after the term the judgment became a sealed record of 
judicial truth, and the prevailing party was entitled to its 
benefits ; that the court had no more right to go behind the 
affirmance than any other individual. 

You will thus see, gentlemen, that the question is not a new 
one in my own experience. And if I show a sensitive zeal 
about it, it is because of my great reluctance to see the old 
foundations of the law subverted and a power exercised at 
war with the best established theories. 

The doctrine of the want of power after the expiration of 
the term was affirmed in Rich vs. Minnesota and Northwestern 
Railroad Company, 21 How., 82; Washington Bridge Com- 
pany vs. Stewart, 3 How., 413; Peck vs. Sanderson, 18 How., 
42; Sibbald vs. Ttfe United States, 2 How., 455. 

Thus we see that upon universal authority the action of the 
Supreme court, in issuing what they called a " surceasing or- 
der," was a thing wholly and entirely beyond the control of 
that tribunal. It had no power over its own judgments. 

XXI. I have said, gentlemen, that the settlement of this 
question of jurisdiction or power in the tribunal has acted upon 
a right which is not one of delicacy even, but it always arises 
with every tribunal whenever action is invoked. The Su- 
preme Court of the United States does not assume to act upon 
the constitutionality or unconstitutionality of the acts of Con- 
gress because they have any specially-delegated jurisdiction 
to interpret the laws. The judges act upon "cases," not 
"questions," as a court, not as a council of revision. And 
when a case is presented for the adjudication of the court 
which involves the constitutionality of a law, or the question 
of the power of Congress or the Executive to do the act which 
has been done, that court has to determine whether the Con- 
gress, in the one case, had the constitutional power to pass 
the law, or the President or other executive officer, in the 
other, had the power to do the act. That is the whole theory. 
So, when a decision of the court comes before this body, if 
the power of the Supreme Court to take cognizance and adju- 
dicate be called in question, from necessity Congress must 
decide that question for itself. And while it is the duty of 



56 






each department of the Government to pay all due respect to 
the other departments, and in proper cases to allow that the 
action is conclusive, jet, where there was clearly a want of 
power, the department which has to act lastly must deter- 
mine for itself upon the question of power. 

The law-making and approving power is confined to Con- 
gress and the President. So that in the cases involving the 
constitutionality of the United States "Rank, it was admitted 
that as Congress and the President had determined the neces- 
sity of the measure at the time, the court was concluded by 
the judgment of the departments of the Government, which 
are made the judges of the choice of means. So in the legal- 
tender question, (Griswold's Case, 9 Wallace,) the very strong 
minority of the court were of opinion that the action of the 
President, the Secretary of the Treasury, and of Congress, 4&ssz 
*se&ZegM,e»es the necessity and the choice of means, ought to be conclusive 
y on the court. The majority, however, had no such deference, 
and for themselves judged that Congress was mistaken as to 
the necessity and choice of means, thus overruling the opin- 
ions of more than twenty supreme tribunals of the State and 
the general judgment of the nation. I should fail to express 
myself as clearly here as have the great minds whose opinions 
I have collected in my notes on the Constitution, which book 
is so familiar to you all that, without vanity, I may cite it, 
not as an authority, but as the place where to find the 
authorities, with all the nice distinctions. 

XXII. I therefore insist that there was not only no power in 
the Supreme Court or of Judge Ogier to recall their judgments, 
for that they were restrained by the Constitution, but, more- 
over, that Mr. Justice Wayne, in his premises, in his every 
step of reasoning, his narration of facts, and throughout the 
opinion, exercised original jurisdiction and nothing else. 
Thus he reviews the very immaterial fact that Ord wrote the 
petition for appeal to the district court signed by E. 0. 
Crosby. And he says : 

"The purpose for which this affidavit was made is, to show the interested con- 
nection between Mr. Ord and the claimant of the land from the beginning of 
the institution of his suit to establish his right, and its influence upon the official 
^induct of Mr. Ord afterward, in every proceeding in the cause, after it had 
been removed from the northern district of California to the southern." 

Every tyro knows that fraud and combination in obtaining 
a decree is the subject of original jurisdiction, and it can only 
be proved by bill, answer, issue, and proofs, and not by ex 
parte affidavits in an appellate court, upon a motion which, 
had it been made before mandate and the adjournment of the 



57 

term, could not possibly have involved anything else than the 
mere questions, Had there been a final decree, and had there 
been an appeal consummated? 

But the learned judge proceeds with a history of Ord's 
purchase from Gomez; of the false affidavits of Sims; again 
brings in Crosby; "from which we infer," &c, without no- 
ticing the fact that Crosby's petition was wholly immaterial 
to the appeal under the act of 1832, and says: 

"At this point began those irregularities which, until explained, must leave 
an unfavorable impression in respect to Mr. Ord's discharge of his official obliga- 
tions to the United States." 

Then, again, he proceeds to dissect the affidavits and the 
returns of Ogier, true and false, weighing against the decree, 
from which, in the exercise of no possible jurisdiction but 
original, Justice Wayne says: 

"This narrative has been given from documents, depositions, and declarations 
of the parties concerned in the case, and also by other persons, apparently dis- 
interested, in respect to the land. They will be found either on the record upon 
which the cause was docketed and dismissed in this court, or in the book of 
exhibits sent to this court by Judge Ogier, which were obtained to enable him 
to act understanding^ upon the merits of the case. The case being still before 
the court, we do not perceive any irregularity in the proceedings. Besides the 
motion for granting the appeal, the court had jurisdiction of the cause to deter- 
mine what proceedings the claimant was entitled to under the circumstances of 
the case, to get the benefit of the decree, by survey or otherwise." 

The learned judge, by the exercise of clear original juris- 
diction in an appellate court, having determined against the 
validity of a solemn decree, not upon the record, but upon 
the ex parte affidavits of traitors to their client, and perjurers 
who swore against the record, in which great prominence was 
given to the pretended fact, that a motion for a rehearing, 
"filed by Stanton," was pending, when it is now clearly shown 
that no such motion was ever "filed," but that it is only 
said that such a paper was deposited with the clerk, and after 
two terms from the judgment had elapsed, found it easy 
to say: 

"We will now proceed to show, from the record of the case filed in this court 
by the claimant and from the official declarations of the clerk of the district 
court from whom the record was obtained, that this court had no jurisdiction in 
the case when it was docketed and dismissed. 

"Mr. Sims, the clerk of the court, deposes, that in this case a transcript was 
called for by letter, signed W. W. McGarrahan; that, when that letter was 
received, no appeal had been allowed to carry the case to the Supreme Court, 
and that a motion for that purpose was still under the advisement of the court. 
The deputy clerk, Mr. Coleman, however, sent to McGarrahan a transcript, 
which was received by McGarrahan ; and, that not being satisfactory, it was 
returned to the clerk, with a letter from McGarrahan, stating in what particulars 
it was deficient ; and, among them, that it was deficient in not having a copy of 
the order for an ap >eal to the Supreme Court, which McGarrahan suggested 



58 

would 1"' found on the minutes of the court. To this letter a reply was given 
by Mr Stetson, who had succeeded Mr. Coleman as deputy, containing an order 
for an appeal, as it appears on the transcript before us. It is difficult to deter- 
mine how such an order found its way into the second transcript of the record 
when it was not in the first, and when the clerk deposes that no such order had 
ever been given. The order for an appeal may have been drawn in anticipation 
of the action of the court upon the pending motions, and left in the clerk's office 
unintentionally, and supposed by the deputy clerk to have been passed by the 
court, or it may have been drawn by Mr. Ord and left in the office, to keep up 
the semblance of his having faithfully represented the United States in the case, 
or it may be that some one of the parties interested in the land had surreptiti- 
ously placed it in the transcript to accomplish the purpose of having the case 
docketed and dismissed in this court." 

The italicizing is by the learned judge, and it shows the 
bias of his mind in regard to a matter now clearly explained, 
and which will be critically noticed in the answer to the reflec- 
tions upon McGarrahan. The unfortunate bias is visible in 
the fact that no explanation is given, that the transcript sent 
McGarrahan contained not a single transaction had in the 
district court, and the italics and the "and it is difficult" 
might as well have applied to any other wanting paper. So 
there is no mention of the fact sworn to by Stetson, then be- 
fore the judge, that Sims produced that appeal order out of 
case No. 20, embodying seven appeals, and ordered it to be 
copied into the record, and that it was so copied, charged for, 
and certified by Sims, under the seal of his court. 

These facts would have saved all speculation about how the 
paper got there. 

But even this monstrous perversion and palpable injustice 
could not support the motion to dismiss, because there was no 
appeal. Another charge upon the immaterial act of Crosby, 
another assault upon the decree, and the manner of obtaining 
it, was found necessary, and thus the judge went at it: 

"The record upon which this case was docketed and dismissed, in connection 
with the book of exhibits sent to this court by Judge Ogier, established in our 
view the following facts : 

"That Mr. Ord became the purchaser of half the land in controversy from 
Gomez, the claimant, when he was district attorney of the United States ; that 
whilst he was district attorney he prepared in his own hand the paper, signed 
by E. 0. Crosby, for the removal of the cause from the board of land com- 
missioners to the district court; that Mr. Ord did not officially, as district attor- 
ney, represent the United States in the case in the district court, in any one 
particular, but allowed it to be done by others, who were interested in establish- 
ing the claim of Gomez, to whom he gave his official confidence, and who are 
shown by the record not to have been the retained attorney of Gomez; that he 
permitted a judgment to be taken against the United States without argument, 
or the production of proof to establish the validity of the claimant's right to the 
land, by saying to the court, in his official character, that the United States had 
no objection to the confirmation of the claim. And it is established by the 
record itself that no appeal has been given to the United States by the court 
below. Mr. Ord admits that he relies upon the declaration only of the person 



59 

to whom lie confided the order which he drew for an appeal that it had been 
granted by the court. 

"Under such circumstances, we conclude that no appeal had been granted ; 
that the cause was not before us when the appellee made his motion to docket 
and dismiss it." 

It will thus be seen that every reason given for this extra- 
ordinary proceeding of the Supreme Court, and the whole 
means of determining the question, were in the exercise of 
original jurisdiction. And we protest that the fact that the 
district attorney permitted a judgment to be taken against 
the United States without argument, or the production of 
proof to establish the validity of the claimant's right to the 
land, by saying to the court, in his official character, that 
"the United States had no objection to the confirmation of 
the claim," are not sufficient reasons for the exercise of origi- 
nal jurisdiction. Hereafter we shall show that they were not 
sufficient grounds for a new trial. At present, it is enough 
to say that the evidence taken before the land commissioner 
was before the court. By the statute the judge was obliged 
to consider it and any new evidence offered by the parties. If 
the fact that the case was not argued constitutes a reason for 
setting aside a judgment, or the possible fact that all the law- 
yers engaged in the cause may be interested in the result, 
then, indeed, property held under judgments hangs upon a 
most unsafe tenure. 

The same authorities which have been cited against the 
action of the supreme court at a subsequent term are equally 
applicable to the action of Judge Ogier in vacating the judg- 
ment of his court nearly four years after the judgment had 
been rendered ; and Judge Haight was right to disregard the 
null action of his predecessor. The foundation being thus cut 
away, the whole superstructure which was reared upon it top- 
ples to the ground. The consequence is, that the confirmation 
in favor of Gomez, in contemplation of law, stands to-day 
where it stood when the mandate from the Supreme Court was 
filed. It is unaffected by the action of courts which had no 
power. 

Nor would the government have been without remedy ; the 
rule was plain and simple. While this dismissal of the appeal 
was a finality as to that appeal, the United States had the 
right to prosecute another appeal at any time within five 
years. At least such is the practice. (United States vs. Pa- 
checo et al, 20 How., 261, ante p. 39.) 

And, this jurisdiction not having been exercised at the end 
of five years, the decree became a finality, and the rights of 
the Government were forever barred. (United States vs. Hal- 



60 

leek, 1 Wallace, 455, 456 ; affirmed in United States vs. Bill- 
ing, 2 Wall., 448.) 

XXIII. Fortunately in this case the question is not so necessary 
to the action of Congress as it would be to a court where a judg- 
ment might be invoked as the foundation of an action. Whether 
McGarrahan's title still stands confirmed or not, no one con- 
tends that the action of the court is conclusive upon Congress. 
Had that action, which we contend is without jurisdiction, 
never transpired, the patent would have issued in the regular 
course. That is, the survey would have been made under the 
direction of the court ; the field-notes would have been certified 
just as they have been, (though under a different law,) and the 
patent would have been issued. But, if, for any cause, the patent 
had not been issued, the legal title would have remained, just 
as it now remains, in the Government ; and the holder of the 
equitable title would have been obliged to come to Congress 
for the final confirmation and for the patent. So that really 
the action of the court, either in confirming or rejecting the 
grant, could not be a finality, nor. could it absolutely control 
Congress or the executive. If it confirmed, it strengthened the 
equity of the claimant, but it did not create that equity ; if it 
rejected, it might weaken, but could not destroy the equity. If 
the court confirmed or rejected with jurisdiction, its judgment 
would be entitled to respect ; but if without jurisdiction, the 
judgment is not even persuasive. If with jurisdiction and 
regular, its judgment against the United States would be re- 
garded, unless there should be some great reason to disregard 
it. But, non sequitur, that in such a case as that, Congress may 
not prevent the enforcement of the judgment ; and if the judg- 
ment be against the claimant, it cannot stand in the way of 
Congress. 

In fine, whenever the sovereignty of a country opens a tribu- 
nal in which it authorizes suits to be brought for the trial of 
any right, there is a general understanding that the sovereign, 
or those exercising the sovereign power, will acquiesce in the 
judgment. Thus, in our law establishing the Court of Claims, 
the jurisdiction of that court is limited to contracts express and 
implied, and to such cases as Congress shall refer to it. But 
suppose that court should hold that the treaty of Hidalgo is a 
contract, or the treaty for the purchase of Alaska is a contract, 
under which Mexico or Russia or Gomez might sue the United 
States, and the court should decide in favor of its own jurisdiction; 
and the United States Supreme Court should affirm that judgment, 
would either Congress or the President respect such a ruling ? 
Or, suppose that court should sustain an action upon green- 
backs or United States bonds, and render a judgment either for 



61 

or against the holders, is there an accounting officer who would 
feel bound by such decision ? In the one case and the other, 
wherever the judgment is called in question, the law officers 
would be compelled to look behind the judgment which decided 
in favor of the jurisdiction of the tribunal to the law under 
which the action was had. And if, upon the law, the jurisdic- 
tion could not be sustained, a quo, the judgment cannot be 
respected. 

XXIV. I might thus rest upon the law of the case, and the fact 
th&tall that was decided was the exercise of original, and not ap- 
pellate jurisdiction, and upon facts which could only have been 
the foundation of an original bill or bill of review to vacate 
a judgment, because of the failure of an officer of the United 
States to make a defense when he had no defense to make. 

But as three days were spent by the opening counsel in 
reading and commenting upon those excellent worthies, Goold, 
Hartman, and Ogier, (par nobile fratrum,) in matters wherein 
they were as wanting in jurisdiction as the Supreme Court, I 
will put in a brief but careful narrative of these facts, which 
I beg may be carefully considered when the committee shall 
come to deal with the facts which influenced and deceived the 
Supreme Court into the wrongful exercise of power. 

Mr. Wilson treated the order of appeal of 15th March, 1858, 
in the seven cases, as forged and fabricated. This was his first 
proposition. But as he advanced he admitted the existence 
of the paper; and he narrowed his assertion to the assump- 
tion that the paper was written by Pacificus Ord, the district 
attorney, and interpolated in record No. 20, where it lay, with- 
out the knowledge of the clerk or judge, until, upon the letter 
of McGarrahan, it was fraudulently taken out of No. 20 and 
inserted in the Gomez case, No. 393; and thus that a false ap- 
peal was foisted upon the Supreme Court. To make this bold 
assertion plausible in the face of the record, he refers to the 
record of the Supreme Court, No. 67, on which is found, of 
the same date, "on motion of E. J. C. Kewen, acting United 
States district attorney, for leave to take appeal in the fol- 
lowing cases, to wit, Nos. 20, 153, 187, 231, 274, 288, and 393, 
the same is taken under advisement." 

But this note of a motion, (for there is none in the record) 
bears the following marks of suspicion: 

1. There is no such motion signed by Kewen in the record, 
and while a verbal motion to appeal is granted as a matter of 
course in practice, it could not with any reason have been the 
ground of advisement. 

2. The real appeal, or, as the clerk calls it in one place, 



62 

"rough draught of motion for appeal filed in clerk's office," 
(p. 19,) and "written motion for leave to appeal by P. Ord, 
United States attorney," is credited with "filed this 15th 
March, 1858," there is no paper having any such credit in 
the Kewen action. It is a mere memorandum, which could 
have been interpolated in the docket or minutes. 

3. The record, No. 139, twice copies this pretended notice 
of Kewen's motion, (pp. 20 and 67.) At page 20 there is in- 
terpolated in parenthesis, "(Record;)" at page 67 there is no 
such pretense. Falsus in uno,fa!sus in omnibus. 

4. This same notice of motion is in the record furnished 
McGarrahan, on which the case was docketed and dismissed. 
But there is no signature to it. (p. 34.) 

5. But when Sims was making up a record for Judge Ogier 
to kill the appeal, he has this same notice signed, "Isaac S. 
K. Ogier, United States district judge." And it is to be 
remembered that in this record the Ord appeal is marked, 
" Order or notice of appeal." 

6. In record 139, this Kewen motion "for leave to appeal" 
is immediately followed by "written motion for leave to appeal 
by P. Ord, United States attorney." Thus showing that the 
other was a mere verbal matter by somebody, or else after- 
wards interpolated. 

7. The little value of Judge Ogier's statement is found in 
the fact that he treats Kewen's motion as a mere "sugges- 
tion;" whereas, on page 50, he makes Getchell "file his motion 
to withdraw the motion heretofore made by Kewen for leave 
to appeal that and several other cases ;" whereas none of the 
records show a motion "filed by Getchell." As in Kewen's 
case, there was no such paper; or if there was, it has been 
withheld from all the transcripts. (Record No. 139, pp. 20 
and 68; No. 299, p. 64.) The two first of these, like Kewen's 
mere suggestion about the appeal, bear every appearance of 
mere minutes or docket notices; while the last presents the 
absurdity of bearing the signature of Ogier himself, when he 
had never signed it. And in this last the two orders are 
industriously separated. All, however, have this recitation, 
which is inconsistent with the record: "Now on this day 
comes J. R. Getchell, United States district attorney, and 
moves the court to withdraw the motion heretofore made and 
filed to appeal in the cases Nos. 20, 153, 187, 231, 274, 288, 
and 393, which motion, being heard, is granted, and the motion 
heretofore filed is withdrawn." 

9. Thus, while neither Kewen nor Getchell ever filed any 
motion, the record is made to talk about them as though they had. 



63 

It is a significant fact that the other motions, which talk about 
continuances, are without any motions in fact. We speak now in 
reference to the action of J. L. Brent, headed " Clark's motion ; ,; 
(who was he ?) to enter the mandate, and of Taylor. We have 
seen from the Attorney General's docket that all these appeals 
were returned to his office, and that of Carrillo dismissed by 
him. 

10. Mr. Wilson seemed to think that he had found something 
triumphant in the fact that none of the other cases, except that 
of Gomez, reached the Supreme Court upon what they call the 
Ord appeal. If this be so, of which we have really had no 
proof, the information which he brings proves a little too much. 
It establishes the fact of appeal by Ord, and that the United 
States failed to prosecute the appeals, although the records 
reached the Attorney General's office, and one of them, Carrillo, 
was dismissed by Judge Black himself. The other defendants 
did not move to docket and dismiss. But when we come to 
the new appeals in these same cases in 1861, they prove entirely 
too much. 

In Johnson's case, No. 567, (Johnson vs. The United States,) 
Supreme Court, No. 295, the petition was filed by Ord, p. 3 ; 
the title was confirmed 9th Feb., 1857, C. E. Thorn appearing 
for the United States. On the 15th March Kewen moved for 
leave to appeal. The second appeal was allowed Dec, 1861. 
On motion of Getchell, u appointed at the request of the court," 
p. 27. The order was not signed by the judge. 

In the case of Carrillo, No. 328, (Supreme Court No. 305,) 
the same identical orders are made, " at the request of the 
court," (p. 29.) 

In the case of Anguisola, No. 294, the title was confirmed 
21st July, 1857, the same partial notices of motions, and the 
same " appointed at the request of the court to act in behalf of 
the United States," appears. (Supreme Court record, No. 294, 
p. 46.) 

But in none of these records does the motion of Getchell or 
of Kewen appear. And the " Ord appeal " is omitted. The 
memorandum which embraces the motions of Kewen and Get- 
chell is not copied, as a whole, into either of the records, as in 
McGarrahan's case, so that these entries are either fabulous, 
or else they have been divided, as was done in the McGarrahan 
record, on which the case was docketed and dismissed. The 
only thing, then, which these records do prove, is the extraor- 
dinary fact that Ogier took the motion of Kewen, sometimes 
assisting Ord under advisement, while to the district attorney 
he granted an appeal. That order to advise expired with the 
term. The district attorney comes in two terms afterwards 



64 

and moves to withdraw the motion of a private citizen, (and 
there is no such motion anywhere in any record,) and does with- 
draw it. Two years after that, when there was no district 
attorney, that same judge requests a gentleman of the bar to 
appeal in all these cases ; but he takes no such course in the 
Gomez case, nor in eleven others appealed, in a single day, in 
1857. Such impertinence on the part of the judge leads to 
but one conclusion : he was weakly seeking to cover up his 
own tracks by a most extraordinary expedient. 

Against this whole fallacious theory, which seeks to deny 
the fact of an appeal in the Gomez case, we oppose these facts — 

1. That it is admitted on all hands that it was made the 
duty of Ord to appeal in all cases. And the law will presume 
that he performed his duty. 

2. We find him appealing in seven cases in one order, which 
was perfectly consistent with his instructions and the law and 
the practice, as found in eleven other cases in one order. (See 
Cushing's letter.) 

3. This order of appeal is certified by Sims himself, first in 
McGarrahan's case. It is afterwards certified by the district 
attorney. And it is thrice certified by Wheeler, who succeeded 
Sims. And also see Sims's statement in the motion papers, 
No. 299, p. 34. 

4. This appeal in McGarrahan's case was known to Goold, 
and he wrote the Attorney General in regard to it, and asks 
him not to consent to its being dismissed, as he would make 
such statements in regard to it as would induce the judge to 
set aside his decree. These letters were epitomized by the At- 
torney General and acted upon, whatever he may say to the 
contrary. 

Black testifies that Goold was here in the summer of 1859, 
and had personal interviews with him about the case. 

On August 3, 1859, after such interviews, Black, having re- 
solved to defeat the grant, wrote to Meagher that he had pre- 
judiced his case by getting the decree, to docket and dismiss. 

In that letter Black says: 

"A new appeal will be taken, or the case will be reopened in the district court.' 

Thus Goold and Black both thought (and there was no pre- 
tense otherwise) that the appeal of 15th March, 1858, had 
been allowed. This they knew in August, 1859. 

5. Stetson swears that there was such an order, and that 
the original paper was filed in case No. 20, and that Sims him- 
self got it out of that file and directed him to copy it, and 
that he did copy it, and it is certified under the seal of the 



65 

court. (Record 299, p. 34.) The certificate of Sims on the 
same page does not negative this. 

6. When McGarrahan asked for a copy of the record, Cole- 
man sent him a transcript which omitted everything done in 
the district court and every paper filed there, including the 
order of appeal. None can doubt the propriety of McGarra- 
han objecting to a record which omitted every scintilla which 
gave jurisdiction to the Supreme Court. And it is exceed- 
ingly disingenuous to blame him for objecting to a record 
containing the stray motion of Stanton, {which -paper was never 
filed — see Sims's certificate to record, 299) for a rehearing, 
which motion was lodged, but not filed, in vacation, and thir- 
teen months after the decision of the case, and no action was 
ever had upon it. But, reserving comments upon this, my 
point now is, that McGarrahan's letter was not written to 
Coleman, but to Sims himself ; that Sims swears it was opened 
by his deputy, Stetson, not Coleman, and was acted upon in 
the usual way. 

And now there is no honest lawyer who will say that the 
record contained anything which it ought not to have contained, 
or that it omitted anything which it ought not to have omitted. 

7. But I understand that the existence of the Ord appeal 
is no longer questioned, and the necessity of that order being 
signed by the judge is no longer claimed. For, if it be, then 
not a dozen of the California cases were ever appealed; and 
certainly the second appeal in the Gomez case has no signa- 
ture of the judge. Indeed, I have found but a single case 
where the judge signed the order, and that was made at a 
subsequent "stated term" by Judge Hoffman. 

8. And now, it being fully established that this appeal order 
did exist; that it was known to Goold, as appears from his 
extraordinary letters to Black; that it was acted upon by Sims 
himself, who produced it to Stetson, to be copied into the 
record; that it was certified as part of the record under the 
seal of the court; that this record was presented to the At- 
torney General, and the fact of the appeal corresponded with 
the docket entries of that office ; (ante, p. 38,) that the record 
was fully discussed by the Attorney General, Meagher, and 
Sickles; that the case was docketed and dismissed, with Black's 
knowledge and consent; — how must this committee and Con- 
gress characterize the motion of the Attorney General of the 
27th January, 1860, to rescind the order, in which he states, 

"1. There is no appeal taken in the court below. 

"2. There was a motion on the part of the United States to review the case." 

It is charitable to hope that the palpable perjury of Sims, 
6 



66 

on page 2, influenced the first statement. His statement 
before the committee, that he had never before been informed 
that Stanton's motion had been made in vacation, and after 
two terms had intervened, is the only apology for the second 
statement. And this explanation is in the face of that record, 
p. 28, and the certificate of Sims himself in reference to it. 
To say the least, the Attorney General was misled, and he mis- 
led the court, upon these false and rash statements of Sims, 
Hartman, and Ogier, who seems to state no fact on his own 
knowledge, but only on the information of Sims and Hartman. 

9. Liars, perjurers, and rash men, ought to have good 
memories, but fortunately for truth they rarely possess them. 
In a forgetful moment they will contradict their best-woven 
stories. This the conspirators did. in making up this story. 
Thus, on page 77 of the record, when Sims came to make up 
his certificate, he says, "documents Y and W were deposited 
with me, as clerk, in open court, but are not a part of the 
record, as there was no order for filing the same by the court." 

The first falsehood here is that it was " deposited in open 
court," (the paper is Stanton's pretended motion.) For you 
have seen that the court was not then in session, but was in 
vacation. If you will look upon page 67 of this record, 299, 
you will find at the head of the page the imposing caption, 
"Motion of U. S. Government, No. 29, Document W." I 
will give the whole : 

The United States, ~) 

vs. \ Motion of U. S. Government, No. 29. — Document W. 

Gomez. J 

United States of America, Southern District of California, appeal from the Land 
Commission JSFo. ,for Panoche Grande. 
Vicente Gomez, 



The United States. 

And now comes the United States by Edwin M. Stanton, her special counsel 
in that behalf, and moves the court to open the decree and reinstate it upon the 
docket, with leave to take testimony on behalf of the United States, for reasons 
following : 

1st. That the said decree was improvidently entered. 

2d. That new evidence has been discovered, material to the United States, to 
show that the said claim was fraudulent and invalid. 

Edwin M. Stanton, 
Counsel for the United States. 
Filed 7th July, 1858. C. Sims, Clerk. 

Per J. H. Coleman, Deputy. 

Thus you will see that the forger did not hesitate to mark 
the document filed, which, in a truthful moment, he certifies 
was never filed; and taking into consideration that Edwin M. 
Stanton was never commissioned to the southern district of Cal- 



67 

ifornia, but was specially commissioned to the northern district, 
and the number of the case is not given, and such a scholar as 
Stanton is made to call the Government u Aer," the fair pre- 
sumption is, that if ever Stanton drew such a paper he drew it 
for some case in the northern district, and some one of the 
forgers have interpolated it into this record. At any rate, it 
was no part of the record, neither indeed could it be, as well 
because it was never filed, as because it was never acted upon 
by the court, and thus made a part of the record; and on this 
I call your attention to the great case of Castro vs. lilies, 11 
Tex., 39, already quoted. (Post p. 69.) 

XXV. The counsel on the other side must have felt the weak- 
ness of their cause when they found it necessary to comment 
upon the letter of McGarrahan, in which he objected to the re- 
cord sent him. I feel it to be my duty to commence with an ear- 
lier letter from Coleman to McGarrahan. I do so to repel the 
unwarrantable assumption that there was an improper under- 
standing between Coleman and McGarrahan. It was a letter 
demanding a fee in advance for the record, and saying that if 
the United States prosecuted their appeal this demand could 
not be made. 

This letter shows that Coleman was looking to the main 
chance. It also explains that Coleman then understood that 
there was an appeal pending; that if the law officers of the 
Government called for the record it would be made without 
fee; but if called for by the citizen, he must pay the extra 
fee. McGarrahan swears that he sent the $30 demanded, 
which, of course, went to the benefit of the clerk's office. The 
record sent omitted every particle of the proceedings in the 
district court. McGarrahan enumerates these, and, among 
others, the order of appeal. These acts were the petition in the 
nature of a motion for a new trial in the district court, the 
motion and order to strike the case from the northern district 
court of California, and send them to the southern district 
court, the note of the decision of the 5th of June, 1857, the 
nunc pro tunc orders of the 7th January and 5th February, 
1858, and the appeal order of 15th March, 1858. There is no 
dispute about any of these records except the last-named, or 
McGarrahan's right to a transcript of the record with them. 
But it is more than insinuated that he should not have assumed 
that there was an appeal-order. That this letter was addressed 
to Sims, who has proved himself to be a swift enemy, and not 
to Coleman, who is charged to have been McGarrahan's instru- 
ment, dispels the gratuitous assumption of complicity. I am 
instructed by McGarrahan to say that he never saw Coleman 



68 

in his life. Sims swears that Stetson opened the letter, as 
he had the right to do. 

If there was no appeal, to act upon the letter and to send 
the record was a fraud upon McGarrahan as well as upon the 
Government. The remark about transmitting the price of the 
record is explained by the only letter of Coleman, demanding 
the money in advance. The clerk had appropriated the $30 
for a paper which was not a transcript. The suggestion that 
there was an appeal order led Stetson to inquire of Sims for 
the order, and Stetson swears that Sims produced it from the 
papers in case No. 20. Before McGarrahan can be convicted 
of wrong for writing this letter, it must be assumed that he 
ought to have accepted a transcript as a perfect record which 
omitted every paper which had determined in favor of his 
right, and gave to the Supreme Court jurisdiction. The re- 
mark of Justice Wayne, that it is difficult to see how the 
order of appeal appeared in the transcript made up by Stet- 
son, when it was not in that made up by Sims, would have 
been as applicable to any other- paper which originated in the 
district court. It only proves how carelessly the facts were 
examined, and how implicitly the court relied upon the false 
statements of Sims and the unsupported assertions of the 
Attorney General. 

But it is objected that McGarrahan did wrong to object to 
the motion of Mr. Stanton for a rehearing — a motion which 
was made thirteen months after the decision of the cause, and 
nearly six months after the nunc pro tunc decree had been en- 
tered ; and which paper is shown by the certificate of Sims, 
on the last page of record 299, in referring to "Document W," 
only to have been lodged with him, but never filed, because 
lodged in vacation and never acted upon by the court. There- 
fore it was a mere stray paper, which had no place in the record. 
To thus assail McGarrahan for an honest act is aggressive 
hypocrisy. After Judge Black broke down upon the fact (for 
the first time, as he said, brought to his attention) that this mo- 
tion was made in vacation, without leave of the court, and had 
never been acted upon, even the bold cheek of Mr. Wilson had 
to admit that the thing was "matter of fact and not of law." 
I was unable to comprehend the meaning of this. But unless a 
man means to disgrace himself as a lawyer, it was tantamount 
to the admission that the paper was not and could not be a 
legal document in the cause ; that it was not properly in the 
transcript for the Supreme Court, because not of the record 
which had been under the supervision of the district court ; but 
nevertheless, says the hard-pressed advocate, there was great 
impropriety in McGarrahan objecting to paying for it, and 



69 

incumbering his case with it, because it was a fact which Mc~ 
Garrahan should have carried to the Attorney General to save 
his being influenced to docket and dismiss. To this it may be 
answered that McGarrahan could not but know that the United 
States had prosecuted its appeal, or might do so. If Stanton 
was really acting for the United States and not for Goold, Mc- 
Garrahan must have supposed that Stanton would do what 
Goold is proved to have done — have written the Attorney Gen- 
eral of his suspicions. He could not be ignorant that under the 
law the Attorney General must be advised of every fact. And 
the facts that Stanton never wrote one word about this case, 
and that the land was without his jurisdiction, leave a strong 
suspicion that the New Idria Company had foisted this paper 
into the record in order to get the weight of his name without 
his knowledge. Certainly the improper use which has been 
made of the paper, against all rules of law and practice, makes 
it liable to suspicion. Besides, had McGarrahan sought to 
docket and dismiss only, by any concealment, he would have 
carried nothing but a certificate for the purpose, and not a 
record, which disclosed that Ord had acted as counsel for Gomez 
before the commission, and for the United States before the 
district court. 

But the ethics of litigation have never yet assumed the re- 
fined virtue that he who is suing for his rights must carry 
aliunde evidence to the court, that some one, who can know 
nothing of the matter, has raised a hue and cry in the country 
against a judgment regular upon its face, from which an 
appeal had already been taken. I once heard a nisi prius 
lawyer advise the court to adjourn for dinner, and in the 
meantime to ask the people what they thought of the case. 
This was a reasonable request compared with the assumption 
that the man is unfair who does not have copied into his ap- 
peal transcript every libel which may be lodged with the 
clerk concerning his title. 

As to what shall "make up a full and perfect transcript of 
all proceedings in such case," see Castro vs. lilies, 11 Texas, 
39: 

" No paper found in the files should be inserted unless it had been used in the 
case or the court had ordered it to be made a part of the record. ' If the same 
paper, order, or decree is twice inserted in- the transcript, the last insertion will 
be stricken out on motion. * * * And in like manner anything copied in 
the record that does not properly belong to it will be stricken from the costs on 
a retaxation thereof." 

Upon this rule the court struck out all from page 143 to 904, 
inclusive. These were deeds which had been filed among the 
papers in the cause, but were not read nor ordered to be re- 



70 

corded, and therefore, the court ruled, should not have been 
copied in the transcript. 

This is a universal rule, founded in the very organization 
of appellate tribunals. Stanton's motion would have been as 
improper in the record as the decalogue, the songs of Solo- 
mon, or the Lord's prayer. And, by statute, the review in 
these California land cases is confined to "the pleadings and 
evidence in the case." (Act of 2d March, 1851, § 10; 1 
Brightly's Dig., p. 113, § 43.) And see evidence in United 
States vs. Fremont, 18 How., 35. (And see the opinion in the 
same cases about the rule about docketing and dismissing.) 

XXVI. Equally absurd and insincere is the theory, that it 
was the duty of McGarrahan to have accepted the unconstitu- 
tional and illegal order of Judge Ogier, made at the instigation 
of Goold, four years after the rendition of his own decree con- 
firming the title, setting aside that decree, and placing the 
cause upon the docket for trial de novo. We have shown that 
the judge had no such power over the records of the court 
after the expiration of the term; that the order was a thing 
coram non judice; and that it was done on the judge's own 
motion, upon the suggestion of Goold, just as he had foretold, 
and as he and Black had planned, is a circumstance so preg- 
nant of malice as to deter any honest man from submitting to 
a jurisdiction of force rather than of law. The mere fact that 
the order for a new trial was without power is sufficient. He 
is no friend of his country who complains that a litigant will 
not submit to the will of a mob, or of any official acting beyond 
his jurisdiction, which is the mere exercise of mobocratic force. 
To resist such violence is commendable. It was proper for 
McGarrahan to move to set aside this treasonable order for a 
rehearing. For to demand of any man that he shall be des- 
poiled of his rights, except by "due course of law," is treason 
against the Constitution. And, by "due course of law," I 
mean the statute law and the well-regulated rules of practice. 

The same remarks answer the complaint that McGarrahan 
was unwilling to submit to the unlawful exercise of the orig- 
inal jurisdiction of the Supreme Court, in professedly admin- 
istering revisory powers over its own judgments at a subse- 
quent term, when in fact it was trying a solemn judgment 
upon a set of false and contradictory ex parte affidavits, and 
reaching after a decree not possibly within its power, and 
through this machinery and a made-up record entertaining a 
motion in the nature of a bill of review, which would have been 
demurrable. As little just complaint can there be of his oppo- 
sition to an appeal pretended to be taken on an order after- 



71 

wards rescinded upon a motion made more than five years after 
the rendition of the judgment — a proceeding without the juris- 
dictional fact of citation and without notice, and even when 
this impossible appeal was not seasonably prosecuted. Surely 
McGarrahan was right in resisting a jurisdiction thus obtained. 
No one ought ever to be required to answer before a judicial 
tribunal which has taken cognizance against law and against 
the whole current of its own decisions. Such a state of facts 
displays that action is being prompted for the peculiar case 
rather than the general administration of justice. In all these 
controversies, which Mr. Evarts admits were the "exercise of 
official pressure," McGarrahan, a foreigner, and an innocent 
purchaser of a regularly-confirmed title, is the champion of 
the law against those who are shown to have been openly dis- 
regarding it. 

XXVII. But Mr. Evarts excuses the tribunals and censures 
McGarrahan, because he says that Pacificus Ord, the United 
States district attorney, appeared for the United States when 
he had an interest against the United States, and that no one 
defends the strict propriety of Ord's course. Suppose they do 
not. Ord received his commission from the same source from 
which the Attorney General, the special counsel of the United 
States, and the judges received their commissions. If he was 
guilty of an impropriety, my associate has shown that many of 
the others were acting in the open violation of a stringent pe- 
nal statute. He at least was protected by the forms of law, and 
he acted openly, because the record read to Ogier and criti- 
cally examined and discussed by Black, seen by the Supreme 
Court, and known by the district judge, through the record, 
when he filed the mandate, disclosed that he had acted for 
Gomez before the commissioners and against him in the dis- 
trict court. If this was so reprehensible, the complicity at- 
taches to every official who let it pass with their approval, or, 
at least, without their challenge, until after cinnabar was dis- 
covered, and the squatters who were in receipt of it corrupted 
the counsel of Gomez and the clerk and special counsel of the 
United States. And it is due to Ord to say that neither spe- 
cial counsel nor official counsel, counsel of squatters, New 
Idria Company, nor any one of their hundred hired counsel, 
judge supreme or judge inferior, during all these thirteen 
years, has discovered one single fact which Ord could or might 
have used to have changed the result upon any newly discov- 
ered evidence, or the application of an honest principle of law. 
Of railing and denunciation we have had enough. But the 
simple question still stands, what was the legal effect of a dis- 



72 

trict attorney allowing a judgment, nihil elicit, to be rendered 
against the United States in favor of an equitable title, when 
to this day no honest reason has been shown why that judg- 
ment should not have been rendered? No one has yet had the 
hardihood to assert that this mere non-defense by a Govern- 
ment officer rendered the judgment void or voidable. 

Mr. Justice Clifford, when trying the simple question of ju- 
risdiction, as if doubting the propriety of what he had just said, 
with some daintiness [on the motion to dismiss the appeal] 
wrote: "Effect of the motion, if granted, would be to leave the 
decree below in full force and unreversed, which is a result 
that at present we are not prepared to sanction. When the 
cause comes up upon the merits, we shall desire to hear coun- 
sel upon the question whether there is any valid decree in the 
case, and if not, as to what will be the proper directions to be 
given in the cause." (1 Wallace, 702.) Such peeping into 
matters not before the court was, perhaps, commendable. 
Such avowal of a policy as a reason for extraordinary over- 
sight of facts, and stretch of imagination as to things not 
true in themselves, can only be imitated when something re- 
markable is to be done. Such an invitation to "the counsel" 
to discuss a matter which could only belong to a court of 
original jurisdiction upon an original bill, might enlighten 
the multitude, but it could furnish no guide for an appellate 
tribunal. However well intended this happy suggestion might 
be, it showed such an inclination of mind as might well excuse 
an appellee, who well understood the powers of the tribunal, 
from being willing to enter into a polemical discussion about 
a matter which should have originated in California, if any- 
where. 

What occurred in regard to this valuable suggestion about 
the validity of the original decree, when the case a third time 
came before the Supreme Court, does not appear. According 
to the reporter, those eminent "special counsel" Black and 
Goold only appeared. (3 Wallace, 760.) The briefs are not 
printed, but the presumption is that the appellee did not re- 
spond to the invitation to discuss the decree, because the 
learned judge, in the nine points of his second narrative, 
makes no mention of any such discussion, nor does it appear 
that the counsel for the appellee ever appeared for any other 
purpose than to move to dismiss for the want of jurisdiction. 
The learned judge does tell us, however, that the counsel of 
the claimant a second time appeared and urged that the court 
had no jurisdiction, for reasons which, in my humble judgment 
arc not answered, but are admitted in the statement, that, 



73 

had a mandamus issued against the clerk commanding a record, 
the sworn answer would have been made upon " affidavits show- 
ing that the appeal had been vacated ; and in that state of the 
case it would have been difficult for the court to have decided 
what was right and proper between the parties without an op- 
portunity to inspect the record." (3 Wall., p. 765, § 8.) 

What was the difficulty? On the preceding (764th) page, 
the learned judge says: "And on the 4th day of the same 
month [December, 1862] the court directed that the order 
allowing the appeal should be vacated and set aside." 

Where, then, was the difficulty about the fact, which would 
have rendered an inspection of the record necessary? The 
appeal order had been vacated, as the same learned judge 
states in 1 Wallace, 701. There could have been no doubt 
about the truth of the return, showing that no appeal was in 
existence, and so the mandamus against the clerk must have 
failed. So the only plan was to find an officer facile enough 
to certify an appeal when none existed. Three hundred dol- 
lars in gold paid to a district attorney acting outside of his 
district, when he was a hundred miles away from the record, 
found this officer. 

But we take it that the attack upon the decree, which alone 
could afford any apology for this original cognizance, was either 
too successful, or that it was too weak for the fine histrionic 
powers of the accomplished reporter or the learned rhetorician 
who Tupperized the opinion. The learned judge glides from 
the patent fact that the court had no jurisdiction into another 
iambic: " Regarding the case as regularly before the court, it 
becomes necessary to examine the merits of the claim." (3 
Wall., 766, § 9.) 

And, again, with wonderful logic, he adds, " Although the 
decree was fraudently obtained, still, inasmuch as it is correct 
in form, it is sufficient to sustain the appeal for correcting the 
error. Party who obtained it cannot be allowed to object to 
its validity as a means of perpetrating the fraud, especially as 
he did not appeal from the decree" 

It must be admitted that no student can ever look at this 
fine sentence but to admire. 

It would not do to assert that the decree was void for fraud, 
for that would be to leave no decree, and no jurisdiction to 
a court which had disregarded the lapse of five years, and 
leaped over the facts that there existed no appeal order, that 
there had been no citation, no service, and no appearance, ex- 
cept to move to dismiss for want of jurisdiction. It would not 
do to say that the decree might have been avoided by timely 



74 

suit in the district court ; for that would have exposed the 
fact that this very discussion was an exercise of original juris- 
diction, and worse than a Dred Scott obiter. To leave the 
decree in force would have been " a result which we are not 
prepared to sanction." 

I leave this part of the drama with a repetition of the re- 
mark, that no one has yet shown what further defense Ord 
might have made, or how McGarrahan could be affected by the 
mere fact that he did not make defense. 

XXVIII. There has been no pretence that Ord deceived the 
court ; that he withheld any fact which any man on all the earth, 
in heaven above, or in that region where dwells the evil spirit 
who commissions the powers of darkness, and did commission 
Hartman, Gautierez, and their suborners, to search for and to 
make evidence, knew of a single fact against the title. There is 
no pretense that even Gomez knew, or could know or suspect, 
that Ord knew that he was committing an impropriety. And 
the rule, of law is, that, had a new trial been moved on the 
ground that the counsel of the Government had an interest 
with the plaintiff, it must have been shown, not only that the 
Government lost the benefit of evidence, but also that Gomez 
participated with Ord in the suppression. The general princi- 
ples of new trials are familiar to every tyro of the law. 
They do not differ in England or any of the States. Under- 
lying the whole doctrine is the one maxim, that he who asks a 
new trial must show that injustice has been done him, and that 
not from any want of diligence on his own part. 

Thus, in the case of Gomez, it is not enough to show that 
Pacificus Ord had an interest in the subject-matter, but it 
must have been shown that the Government had suffered; that 
by complicity with Gomez he failed to bring forward material 
evidence; or that the Government had since the trial dis- 
covered new evidence, not before known, and which would 
probably change the result. Thus, if Attorney General Black 
really had a single reason to believe that the title of Gomez 
was forged and fabricated, and had been proved by fraud, he 
3ycz/ might have filed a bill for a new fcfcfes if the term had expired, 
or have moved for it, if the term had not expired. And, then, 
the law has certain and fixed rules, which may thus be summed 
up: 

" To entitle a party to a new trial, on the ground of newly discovered evidence, 
he must satisfy the court that it came to his knowledge since the trial; that 
there was no want of diligence; and that the new evidence would probably 
change the result. Watts vs. Johnson, 4 Texas, 319; Stewart as. Hamilton, 19 
Texas, 101; Madden vs. Shapard, 3 Texas, 50; Long vs. Steiger, 8 Texas, 463; 
Welch vs. Nasboe, 8 Texas, 19U; Edrington vs. Kiger, 4 Texas, 95; Foster vs. 
Spear, 22 Texas, 226 ; Sweeney vs. Jarvis, 6 Texas, 41. And the new facts must 



75 

be set out. Madden vs. Shapard, 3 Texas, 49; Sweeney vs. Jarvis, 6 Texas, 41. 
And they must not have been known to the affiant before the first trial. Gregg 
vs. Bankhead, 22 Texas, 252. These rules are even more stringent, where the 
proceeding is an original suit for a new trial. (Common law is ex- 

hausted.) Burnlev vs. Rice, 21 Texas, 180; Vardeman vs. Edwards, 21 Texas, 
742; Steinlein vs. t)ial, 10 Texas, 268. 

"The application, whether made before or after the term, is addressed to the 
same court having cognizance of both legal and equitable causes, and both are 
governed by the same rules; but if not made at the term, the party must show 
equitable excuses. (Caperton vs. Wanslow, 18 Tex., 125; Goss vs. McClaren, 17 
Tex., 107; Spencer vs. Kinnard, 12 Tex., 180; Vardeman vs. Edwards, 21 Tex., 
740.) That is, he must state circumstances, not attributable to his own fault 
or neglect, nor within his control, showing that he did not have it in his power 
to apply for a new trial, and to enforce his application before the court that tried 
the cause. (2 Story's Ea., § 173, and cases cited; Id.; Fisk vs. Miller, 20 Tex., 
578; Gregg vs. Bankhead, 22 Tex., 252.) As that he was prevented by severe 
indisposition from making a meritorious defense. (Spencer vs. Kinnard, 12 Tex., 
187.) But not the neglect or misinformation of the attorney. (Vardeman vs. 
Edwards, 21 Tex., 741.) Nor of himself. (Blackman vs. Green, 17 Tex., 329; 
Pierce vs. Cole, Id., 261.) He must show that he has a good defense, of which 
he "was ignorant, or that he was prevented from making it by fraud or accident, 
or the act of the other party, unmixed witli negligence or fault on his part. 
(Gr. & Wat. on New Trials, ch. 17; Goss vs. McClaren, 17 Tex., 117; Vardeman 
vs. Edwards, 21 Tex., 745.) An original suit for a new trial will not be sus- 
tained on a general charge of fraud, or on the ground that the plaintiffs failed 
to adduce proofs, or disclose facts, which the defendant knew, or might have 
known. (Burnlev vs. Rice, 21 Tex., 182.) 

"In an original proceeding for a new trial the party must make out a case 
which would have entitled him to a new trial if applied for at the term, and 
show a sufficient legal excuse for not having then made his application. (Cook 
vs. Garza, 13 Tex., 444; Caperton vs. Wanslow, 18 Tex., 132; Cook vs. Garza, 
and Gr. & Wat. on New Trials, approved; Gregg vs. Bankhead, 22 Tex., 252.) 
And if the grounds of application rest within the knowledge of others, their 
affidavits of the facts should accompany the application. (Id. ; Edrington vs. 
Kiger, 4 Tex., 95; Scranton vs. Tilley, 16 Tex., 193; Steinlein vs. Dial, 10 Tex., 
269.) The opposition to the new trial may be by exception, or notice of excep- 
tion, to granting it, in the record. (Caperton vs. Wanslow, 18 Tex., 132.) The 
court cannot grant a new trial after the term, except on an original proceed- 
ing." (Paschal's Annotated Big., note 566, p. 362.) 

These cases review about all that has been said in England 
and America, and from them may be deduced the following 
general principles applicable to this case: 

1. That a motion for a new trial will never be heard, nor 
will the court grant one, as Judge Ogier did, after the ad- 
journment of the term at which the judgment was rendered. 

2. That an original bill in equity for a new trial is subject 
to more stringent rules against the movers than a motion at 
the same term. 

3. That neither in case of motion nor upon a bill in equity 
for a new trial will the judgment be set aside, unless the 
party be able to impeach its equity and justice, and to show, 
also, that there is good ground to suppose that a different re- 
sult will be attained by a new trial. (French vs. Garner, 7 
Porter, 549; Vanlew vs. Bohannan, 4 Rand., 537; Sturnett vs. 



76 

Branch Bank, <fcc, 9 Ala., 120; Secor vs. Woodward, 8 Id., 500; 
Plummer vs. Power, 26 Tex., 14; 3 Graham & Waterman, 1021.) 
And if upon the ground of newly discovered evidence, he 
must have shown that he used due diligence, that it came to 
his knowledge since the trial, and is not cumulative. (3 Gra- 
ham & Waterman on New Trials, 1046; Frizzell vs. Johnson, 
30 Tex., 36; Williams vs. Amis, 30 Tex., 49; Hatchett vs. 
Conner, 30 Tex., 113, 114.) 

" The newly discovered evidence should be set out verbatim, just as it can be 
testified to in court, and be subscribed and sworn to by each of the newly dis- 
covered witnesses." (G. & W. on New Trials, 1071; 6 Johns. Ch.. 1-2.) 

"If broad, general, and indiscriminate charges of fraud, combination, and 
conspiracy were sufficient, without pointing to any single act or fact of a charac- 
ter to warrant the charge, or if the having obtained a judgment which the ad- 
verse party would undertake to show to be wrong and unfounded, or unjust, 
were sufficient to set aside a judgment, there would be few trials which would 
be final, and few judgments which might not be impeached and enjoined, or set 
aside for fraud. Law-suits, as has been said, would indeed be immortal, while 
men are mortal." (Burnley vs. Rice, 21 Tex., pp. 182, 183.) 

The committee will remember that when I examined Judge 
Black upon these general principles of the doctrine of new 
trials he could not gainsay them, but he seemed to think that 
there was such fraud in Ord writing an appeal motion for 
Crosby to sign, (which motion was wholly immaterial,) and for 
Ord to appear for the Government when he had an interest, 
that it vitiated the judgment. And throughout the whole of 
this legal farce, so powerful have been the effects of the quick- 
silver upon the hired counsel for the New Idria Company, who 
shielded themselves under the name of the Government, that 
they seem to have forgotten that the purchaser under the 
claimant had any rights whatever; and that the government, 
when it becomes a private suitor, is governed by the same 
rules of practice as individuals. Common sense would tell 
any one not blinded by avarice that if there was fraud, mis- 
take, or collusion in obtaining that decree of confirmation, the 
mode of reaching such fact would have been by some original 
proceeding instituted for the purpose; and that when such pro- 
ceedings were started they must be governed by some uniform 
rules. Thus a new trial could only be obtained by motion at 
the term or an original bill afterwards. But in either case it 
must be shown that the Government was not in the wrong, had 
not been deceived or imposed upon by Gomez. But here at 
the threshold was the fact that no new evidence has ever been 
produced, (for the broad, unblushing, unsupported railing of 
the Attorney General proved nothing.) Such allegations of fact 
to be heard must have been supported by sworn bill and the 



77 

affidavits of persons who knew the facts. Then, if there was 
wrong on the part of Ord, he was the attorney of the Govern- 
ment, and the Government could take no advantage of that 
wrong, even as to Gomez, without proving that Gomez did 
something active to suppress the evidence. 

XXIX. The case next appears in the Supreme Court upon a 
record wanting in everything which transpired in the board of 
land commissioners, and filled with everything, after the final 
judgment, which could be paraded. It appeared under the pre- 
tence that there had been a new appeal, when the only appli- 
cation had been made over five years after the decree had 
been rendered, upon an appeal order which the judge who 
made it had solemnly annulled, and consequently it could 
have no existence upon a state of case where there had neither 
been citation nor notice of appeal. On these grounds counsel 
for appellee moved to dismiss. And now, because the judge 
who delivered the opinion upon a total misapprehension of 
the facts, because of the false and extraneous matter in the 
record, overruled this motion, we are coolly told, "You had 
your day in court, and you are estopped from further objec- 
tion." 

Yes, we had our day, and such a day ! To get at us, there 
were deducted from our time eighty days, about which there 
could be no mistake. We were made to at "once appear," 
when we were a hundred miles away. Courts were jumbled 
together when they were months of time and four hundred 
miles apart. A final judgment, which drew to it all subse- 
quent amendments, was totally disregarded, or made to go for- 
ward eight months in the calendar of time. The action of the 
district judge, reopening the cause when he had no jurisdiction, 
was lugged in to give a color as to time, because that null 
order had been disregarded. And, finally, the learned judge 
appeals to the u ex necessitate rei," and says : 

" In view of the whole case our conclusion is, that the motion to dismiss the 
appeal must be overruled. Effect of the motion, if granted, would be to leave 
the decree below in full force and unreversed, ivhich is a result thai, at present, 
we are not prepared to sanction. When the cause comes up upon the merits, we 
shall desire to hear the counsel upon the question whether there is any valid 
decree in the case, and, if not, what will be the proper directions to be given in 
the cause." 

Yes, as upon the previous exercise of original jurisdiction, 
it had to be again entertained, and policy consulted in a legal 
forum. 

As to the doubts about the decree itself, the learned judge 
resolved them, in the concluding paragraph in 3 Wallace, 767, 
after this wise: 



78 

"Although the decree was fraudulently obtained, still, inasmuch as it is cor- 
rect in form, it is sufficient to sustain the appeal for the purpose of correcting 
the order. Party who procured it cannot be allowed to object to its validity 
as a means of perpetuating the fraud, especially as he did not appeal from the 
decree." 

So here, because the Government's appellate court did not 
trust the Government's officer, who appeared for the United 
States, it instituted an original proceeding to examine into 
the conduct of that officer, and, looking to the decree, exer- 
cised an extraordinary power and revoked its mandate. 

Again, upon a mere motion in relation to practice, it dis- 
regarded all the authorities in relation to nunc pro tunc or- 
ders. For, in reference to those amended and nunc pro tunc 
decrees, which were only amendatory of the original decree 
of the 5th June, 1857, which have been shown to be wholly 
immaterial, so far as the right of the United States to appeal 
or for any other purpose, is concerned, we say that the nunc 
pro tunc clause merely carried back the formal act of signing, 
so that the decree, when entered, would stand cotemporane- 
ously with the time it was created and pronounced by the 
court. The pronouncement is the creation of the decree; no 
decree can be pronounced nunc pro tunc. It may be signed 
nunc pro tunc, it may be entered nunc pro tunc, at any time 
when, by omission of the court, or act of Providence, it was 
not entered at the time it should have been. It may even be 
dated and entered nunc pro tunc, as of date anterior to the 
pronouncement, to avoid abatement by death of a party after 
argument and before decree. The general principles are 
clearly stated in the following cases: Block vs. Shaw, 20 Cal., 
68; Savings and Loan Society vs. Gibb, 21 Cal., 609; Campbell 
vs. Moher, 1 John. Ch. R., 342; Slicer vs. Bank of Pittsburg, 
16 How., 579; Gray vs. Brignardello, 1 Wallace, 627; see the 
opinion of Judge Haight, vacating the order of appeal, (Re- 
cord Transcript, p. 41); Fleet vs. Young, 11 Wend., 522; 
Jackson vs. Parker, 2 Caines' Rep., 385; Arnold vs. Seaford, 
14 John., 417; Lee vs. Tillotson, 4 Hill, 27; Smythe vs. Clay, 

I Brown's Parliamentary Cases, 453; Furlong vs. Griffin, 3 
Minnesota, 209; Haines vs. Paxton, 5 Minnesota, 443; Car- 
penter vs. Thurston, July term, 1865, Supreme Court of Cali- 
fornia; Slicer vs. Bank of Pittsburg, 16 Howard, 579; Gray 
vs. Brignardello, 1 Wallace, 627; Fishmonger Co. vs. Robert- 
son, 3 Manning, Granger, and Scott, 970; Donne vs. Lewis, 

II Vesey, 601; 2 Daniel's Chancery Practice, 1219, 1220, 
(marginal); Swayne vs. Naglee, 17 California, 127; Smith vs. 
Clay, (reported in note to Deloraine vs. Brown,) 3 Brown's 
Chancery, 637 (marginal,) 523 top page. 






79 

This principle is really elementary, and I may say almost 
universal; nevertheless, as to reach the end, the learned judge 
had wholly to disregard it. I will quote from some of the 
cases. The law on the subject distinctly says : 

" The party may take his appeal at any time within five years after the pass- 
ing or rendering of the judgment or decree by the inferior court." (Stats, at 
Large, vol. 1, p. 85; 20 How., 240. 

It, therefore, conclusively follows, that five years for an ap- 
peal on the part of the United States commenced from the day 
the judgment or decree of confirmation was passed and rendered, 
namely, the 5th June, 1857, and had expired on the 25th day 
of August, 1862, when the ex parte order of allowance* of appeal 
was granted. 

In the San Pedro case, 2 Wheat., 142, the court says, after 
referring to the rules and regulations applicable to writs of 
error : 

"All these are, in the opinion of the majority of the court, applicable to ap- 
peals under the act of 1803." " An appeal in admiralty, equity, and prize 
causes may be taken at any time within five years from the final decree or 
sentence being pronounced." 

In Yeaton et al. vs. Lennox et al., (7 Pet., 122,) the court 
held the act of March, 1803, which gives the appeal from de- 
crees in chancery, is subject to the rules and regulation which 
govern writs of error. Under this act it has always been held, 
that an appeal may be prayed in the court when the decree is 
pronounced ; but, if the appeal be prayed after the court has 
risen, the party mut proceed in the same manner as had been 
previously directed in writs of error. 

In Whiting et al. vs. The Bank of the United States, (13 Pet., 
15,) the court held : 

" The original decree of foreclosure and sale was final upon the merits of the 
controversy. The defendants had a right to appeal from that decree as final 
upon those merits so soon as it was pronounced." 

In Bank of United States vs. Daniel, (12 Pet., 51,) the court de- 
cided, that if the sum claimed, with interest thereon, to the date 
of the pronouncement of the decree, amount to $2,000, then the 
Supreme Court would have jurisdiction ; but aliter if to make 
this amount interest had to be computed beyond the day of pro- 
nouncement. 

In Skip vs. Harwood, temp., Lord Hardwick, (3 Atkins, 565 
marginal,) the court held that the decree took effect from the 
pronouncement; and if a party attends a cause, and, after hear- 
ing the decree pronounced, does any act in contravention to it, 
he is guilty of contempt, and liable to be committed to the Fleet. 

In Bates vs. Delavan, the court held : 

"The direction to prepare a decree of foreclosure, in conformity with the de- 
cision of the court, I presume, means nothing more than that the decree shall 



80 

be drawn up in proper form to be signed by the judges and enrolled ; but a 
formal decree in equity is not absolutely necessary to its validity as a matter of 
evidence." (Winans vs. Dunham, 5 Wend., 47.) 

Without regard even to the acts of 1789 and 1803, specially 
controlling the subject, it will be seen, according to the estab- 
lished practice of law and equity, that if the appeal could be 
taken on the day the decree was rendered or pronounced, the 
time to appeal then commenced, and terminated in five years 
thereafter. 

The decree is the act of, and is created by, the court. The 
entry or enrollment and signing are a mere formal method of 
preserving the pronouncement or rendering of the decree. 
Unless specially required by statute, the decree is as effective 
without as with the signing. 

Many of these cases were reviewed by Judge Haight in the 
able opinion delivered, when he reluctantly rescinded his 
order allowing the appeal. This opinion is before you and 
need not be quoted. The authorities have not been answered. 

Justice Clifford only holds, that the deciding the cause, 
pronouncing the judgment, and ordering a decree to be pre- 
pared, was not a disposition of the cause; but that these dated 
from the decree which was entered on the 5th February, 1858, 
which was six months after the decree of the 5th June. But 
he cites no authority, nor does he pretend to overrule one of 
the many thousand opposed to his view. 

Nevertheless, were the question really only one of practice, 
as was urged by Mr. Evarts, we should not have felt obliged 
to criticize the opinion. But it is a question of jurisdiction, 
and not of practice. The law limits the time of appeal to 
five years. It has no exception in the statute, nor is it in the 
power to create one. If every amendment, subsequent to 
the judgment, drew the original judgment forward to that date, 
there would be no safety in the sale of property. It would 
upset all cases where commissioners of partition, masters in 
chancery, auditors, and surveyors have to act and make re- 
ports which need confirmation. And as it has been shown 
that these questions of jurisdiction are always open, the com- 
mittee must determine who is right, Judge Haight and the 
Secretary of the Interior, or the Supreme Court? 

XXX. The want of jurisdiction rests not merely upon the 
facts that the time for appeal had elapsed before the motion for 
the second appeal was made, and that the executive officers 
whose duty it was to determine that fact and to make the sur- 
vey had already acted and ordered the patent before the 
Supreme Court attempted to take jurisdiction; but there is 
superadded the great fact, which has been shown from the 






81 

record and by evidence, aliunde, that the same judge who 
improvidently ordered the appeal, under a stipulation between 
the Government, the clerk, and the claimant, heard argument 
and revoked his order, and refused to grant an appeal; so that 
when the pretended record was certified by the district attor- 
ney, whose power to certify rested upon the fact that there 
still existed an appeal, there really was no appeal. 

Painful as is the task, we cannot shrink from the correction 
of the statement 'of the learned judge, into which he doubt- 
less fell because of the confused character of the record upon 
which he wrote — 

" Final decree was rendered on the 25th February, 1858." 

This we insist is a mistake. The judgment which deter- 
mined the right, and drew all amendments to it, was rendered 
on the 5th June, 1857. And it was wholly immaterial as to 
the right of appeal, or any other right of the United States, 
whether any more explicit decree was ever rendered or not. 

" But on the 21st day of March, 1861, the court entered a decree that all pro- 
ceedings heretofore had in the cause be set aside, and that it be put on the cal- 
endar and set for trial de novo. Transcript shows that the order vacating 
the decree was passed upon the ground that the decree was fraudulently 
obtained." 

No one better than this learned judge knew that this order 
for a new trial, made four years after the rendition of the 
judgment, after the amendatory decrees, nunc pro tunc, after 
appeal to the Supreme Court, not prosecuted, and the docket- 
ing and dismissal of that appeal and the filing the mandate, 
was no part of the record, having been made by the court 
without power and without jurisdiction. And he ought to 
have understood that all the history into which he entered, 
and which the reporter has imprudently made his own, was*, 
wholly immaterial to the point, since it referred to the gross 
exercise of origiual jurisdiction by the Supreme Court; a 
jurisdiction founded upon false suggestion, perjury, and 
forgery, as is proved in that motion record itself, and now 
shown beyond doubt before this committee. 

"Delay ensued; and in the meantime a new appointment of district judge 
was made. 

" Application was then made by the claimant to set aside the order vacating 
the original decree, and at the June term, 1862, held on the 4th of August of 
the same year, the court ordered that the previous order, made and entered on 
the 2Lst March, 1861, setting aside all proceedings had in the cause, and placing 
the same on the calendar for trial, de novo, be set aside." 

Here is no pretence that this order of Judge Haight was 
not one of the most eminent propriety. He finds a cause 

7 



82 

upon his docket, placed there by an order of the judge made 
four years after final judgment, and after the elapse of several 
intervening terms; and he had either to decide that the case 
was properly upon his docket or not. For all legal purposes 
the judge might as well have granted a new trial a hundred 
years after a final decree as four years. lie was therefore 
obliged to strike it from his docket. The learned associate 
justice simply glides to another fact: 

"United States, on the 25th August, in the same year, took the appeal under 
consideration. Appeal was taken in open court, and at. the same term in which 
the order was passed restoring the original decree, or rather vacating the order of 
21st March,' 1861, setting it aside and placing the case on the calendar Cor trial." 

Certainly it would have been worthy of this tribunal to 

have said, that an order directing a new trial four years after 

the judgment was a nullity, and that it was proper for Judge 

Haight to have so treated it. But it was not in the logic to 

state this, and it would have been too monstrous to deny it. 

So the point is only hit sidewise, with a kind of boomerang: 

" Appeal, it is true, purports to be from the decision and decree of the court 
confirming the claim, but it was taken from that decree not only after it had 
heen vaca te d, but after the decree directing it to be vacated had itself been 
stricken out, and the original decree had been restored." 

Now, the appeal, not only purported to be from the original 
judgment of 5th June, 1857, but by the record it was so, and 
it could be from nothing else. And if it was intended to be 
insisted that the order, made nearly four years after that 
judgment, had any force, then there was no decre, "interlocu- 
tory" or "final" from which to appeal, and the judge was 
writing when he had no jurisdiction whatever. The judge 
seems to have felt the difficulty, yet he could not give it up 
without a hypothetical doubt: 

"Admitting that the order restoring the original decree was one of validity, 
then i. citation was necessary, because the appeal was taken in open 

court, and might well be regarded as taken at the same term in which the decree 
was rendered.' 

Now, if "the order restoring the decree of 5th June, 1857," 
"or rather vacating the order of 21st March, 1861," had no va- 
lidity, then there was no decree in existence from which to 
appeal. If it had validity, then the validity consisted in dis- 
regarding an order for a new trial made four years after the 
original judgment was rendered, and not in restoring a decree 
which was never affected by the null order for a new trial. So 
the assumption that an appeal taken on the 25th August, 1862, 
might well be regarded as taken on the 5th June, 1857, was a 
large stretch of imagination. The thing was a mathematical 
impossibility. It could be justified by no principle of law. 



83 

It was an unwarranted assumption. That which follows is an 
inaccuracy as to a fact: 

"Granting that the appeal was from the original decree, and that the question 
is wholly unaffected by the subsequent, orders, still it is quite cli o cita- 

tion was necessary in this case. Claimant at once signified Ins intention to 
move the court to set, aside the order granting the appeal, and thereupon it was 
stipulated and agreed between the parties that all Farther pr< Mould 

be stayed until the next term of the court. Notice in writing was accordingly 
given by the claimant that he would submit such a motion at the next term at 
the opening of the court." 

The committee has seen from the proofs that the "at once" 
meant two months afterwards, since neither the party nor his 
solicitor was in court when the order was made, nor did they 
hear of it for two months after the adjournment. The stipu- 
lation had been, that should such an order be made, no record 
would be demanded until a motion to set aside should be 
heard. This was an understanding before the order was made 
or the new trial set aside, and it was had between the district 
attorney, McGarrahan, and the clerk; and yet one of the 
facts claimed against us is, that when Goold, the hired coun- 
sel of the New Idria Company, demanded the record, pending 
that agreement, it was not furnished. And in the same judge's 
opinion, in 3 Wallace, that is given as an excuse for not sea- 
sonably prosecuting the appeal. But let the learned judge 
draw things months apart and four hundred miles away to- 
gether, and let us take his next sentence as a thing in con- 
tinuity, and then how stands the case? 

"He did submit it, and the parties were heard, and the court gave an opinion 
sustaining the motion." 

Had it been added that this was upon stipulation five months 
afterwards, and that the judge at the same time annulled the 
order of appeal, and refused a second motion, we should have 
had the whole truth of the record. And that truth must have 
brought the court to the conclusion, that an appeal order which 
had been regularly annulled had no existence. 

As a jurisdictional fact, however, we utterly deny that when 
an appeal is granted at a subsequent term no citation is neces- 
sary. That is true if the appeal be granted at the term when 
the decree was rendered. But it can be granted at a subse- 
quent term without the presence of the party and without 
notice. Such an order does not and cannot give jurisdiction 
to the Supreme Court. Citation is necessary to that jurisdic- 
tion. It has been so decided repeatedly, both before and since 
this extraordinary ruling, which stands alone and unsupported, 
and it is therefore not bad law, but no law — a precedent flatly 
absurd and unjust. 



84 

XXXI. The only exception to the rule dispensing with 
citation is, when the appeal is taken in open court, in the 
presence of the opposite or adverse party, at the same term the 
decree appealed from is rendered. (The San Pedro, 2 Wheat., 
132.) 

This rule may be said to have become organic, and I do not 
believe it was ever violated in a single case, except the re- 
markable one under consideration. And this we have seen 
was upon a total misapprehension of the facts. 

In the case of Castro vs. The United States, argued at the 
same term with that of Gomez, (3 Wallace, U. S., 49,) the 
point decided was the dismissal of an appeal where no citation 
issued at the time of the allowance of appeal returnable at 
the next term of the Supreme Court, though one issued sub- 
sequently, the appeal not having been taken at the same term 
the decree was rendered which was appealed from, although 
the appeal was taken in open court, and allowed at a time 
when the district attorney, the counsel for the appellee, was 
present. 

Chief Justice Chase, in deciding the case, said: 

"The appeal was allowed on the 11th November, 1864, and the allowance, 
with a citation to the adverse party duly served and a copy of the record, should 
have been sent here at the next term. This was not done, and the appeal, there- 
fore, became void. 

"The fact that the district attorney was present in court cannot change this 
conclusion. We are not prepared to admit that the mere presence of counsel in 
court at the time of the allowance of appeal at another term than that of the 
decision appealed from would dispense with the necessity for a citation." 

This appeal was, therefore, dismissed. Here is a case where 
the allowance of appeal was made in the presence of the coun- 
sel for the appellee, and thus notice of the appeal brought 
directly home to the appellee at the time of its allowance; and 
yet, as the appeal had not been taken at the same term the 
decision appealed from was rendered, and no citation issued 
returnable at the next term of the Supreme Court at the time 
the appeal was taken, the appeal was dismissed. 

The case of Castro is that of Gomez, representing an appeal 
taken at a term other than that at which the decision appealed 
from was rendered, with the exception in favor of Gomez that 
at the time the order of appeal was granted in the case of 
Gomez it was in the absence of claimant and his counsel, and 
without any notice to them whatever. 

An appeal in open court, in the presence of the adverse 
party, was held not to excuse the issuance of citation in Cas- 
tro's case, because the appeal was not taken at the same term 
the decision appealed from was rendered. The issuance and 



85 

service of citation were more strictly necessary in Gomez's 
case, because the order allowing the appeal was granted in 
the absence of claimant and counsel, and when the fact itself 
of the right to appeal was denied, as more than five years had 
expired. 

In the United States vs. Hodge, (3 Howard, 534,) the court 
said: 

" This case is brought here by a writ of error to the circuit court for the east- 
ern district of Louisiana, and a motion has been made to dismiss it, because the 
citation was signed by the clerk and not by a judge of the circuit court, or a 
justice of the Supreme Court, as directed by act of Congress of 1789, (ch. 20, 
sec. 22.) 

"The defendant is not bound to appear here unless the citation is signed in 
the manner prescribed by law, and as that has not been done in this case the 
writ must be dismissed." 

In Villabolos et al., vs. The United States, (6 How., 90,) 
the court said, Mr. Chief Justice Taney delivering the opinion : 

" When the appeal is not made in open court, and at the term at which the 
final decrae is passed, the citation is necessary, (The San Pedro, 2 Wheat, 142,) 
and where necessary, the law requires it to be signed by the judge ; and we have 
no power to receive an appeal in any other mode than that provided by law. 
(Lloyd vs. Alexander, 1 Cranch, 365; Bailiff vs. Tipping, 2 Cranch, 406; Wood 
vs. Lide, 4 Cranch, 180 ; Pickett's Heirs vs. Legerwood, 7 Peters, 144 ; Yeaton 
vs. Lennox and others, 8 Peters, 123.) It follows, that where a citation is 
required in a case of appeal it must, as in the writ of error, be issued and served 
on the opposite party before the term of the appellate court next after the appeal 
is entered. (Yeaton vs. Lennox, 7 Peters, 220.) 

" There was no such citation in the present case, and the entry in the clerk's 
office, standing by itself, was not a removal of the case by appeal, according to 
the act of Congress. There was, therefore, no appeal within the time limited by 
law." 

Thus it will be seen that Chief Justice Taney rests the 
necessity of the citation not merely upon the general and well- 
established practice of the court, which Mr. Evarts admitted 
had better be uniform than right, but the chief justice asserts 
that any other rule would violate the act of 1851, allowing 
appeals in these particular California cases, thus showing that 
the appellate jurisdiction is special and statutory, and could 
not be exercised without a strict compliance with the statute. 

In Bacon et al vs. Hart, (1 Black, 38,) the court, by Mr. 
Chief Justice Taney, said: 

" In March, 1858, judgment was rendered by the court for the plaintiff. In 
October of the same year a writ of error was sued out, returnable the first 
Monday in December next thereafter, and service of the citation was on the 
9th of October admitted by William Hart, senior. But this writ of error was 
not returnable during the term to which it was made returnable, and failed, 
therefore, to bring up the case. 

" The citation not being served on the party or his counsel, the cause is not 
brought into this court agreeably to the act of 1789, and the writ, therefore, 
must be dismissed for want of jurisdiction" 

In the following cases, at this same term, motions were pro- 



86 

posed to be made to dismiss appeals for want of citation and 
prosecution, whereupon the Attorney General voluntarily dis- 
missed them, thus avoiding the motions: 

No. 217. The United States, appellants vs. The Widow 
and Heirs of Manuel A. R. de Poli, deceased. 

No. 221. The United States, appellants vs. Gregorio Tapia. 

No. 257. The United States, appellants vs. Ygnacio Pastor. 

No. 259. The United States, appellants vs. The Mayor and 
Common Council of Santa Barbara. 

No. 282. The United States, appellants vs. Vicente Gomez 
et al. 

No. 184. The United States, appellants vs. Pedro Sainse- 
vain. 

No. 285. The United States, appellants vs. Julianna L. 
Osuna et al. 

No. 286. The United States, appellants vs. John Wilson. 

No. 287. The United States, appellants vs. Jose* J. Ortega 
et al. 

No. 288. The United States, appellants vs. Vicente de la 
Osa et al. 

These uniform decisions cannot be impaired by a single case 
which turned upon things assumed which were not in them- 
selves true. The whole practice is consistent with the gene- 
ral principle, that the Supreme Court can get no appellate 
jurisdiction except it be given by act of Congress; also that 
when such jurisdiction is given, it must be obtained in the mode 
prescribed by Congress, and can be exercised in no other way ; 
and that parties cannot consent to waive a writ and thus give 
jurisdiction, for that this is one of the cases where consent can- 
not give jurisdiction. (Barry vs. Mercein, 5 How., 119; Du- 
rousseau vs. The United States, 6 Cranch, 813 ; Marbury vs. 
Madison, 1 Cr., 137; Paschal's Annotated Constitution, note 
211, p. 207.) 

I read before the Senate committee the following certified 
case, which proved that where the appeal is not taken at the 
term, citation is a jurisdictional fact: 

** Supreme Court of the United States. December Term, 1865. 
" The County of Washington, ) 

"Plaintiff in error, I No. 105.— In error to the Circuit Court of the 

vs. ( United States for the District of Iowa. 

"Clark Due ant. J 

"Mr. Chief Justice Chase delivered the opinion of the court. 

"Tlii? cause was submitted on & printed for the defendant in error. 

Upon looking into the record, we find that it has been brought into this court 
by am- parties, and tcithou.t the issuing or b< i vice of a xurit of error. We 

think that an appeal allowed or a \urit of error served are essential to the exercise 



87 

mrt. The appeal in thii case is thr, 
(Opinions Supreme Court U. S., December Term, 1866, page 228.) 

Mr. Wallace, seeing that his reports were incomplete with- 
out so important a case, has since published it in 7 Wallace, 
694. 

Thus we see from all these cases that the Supreme Court 
not only acted without jurisdiction, because the second appli- 
cation was made more than five years after the true date of 
the judgment, and hence Judge Ilaight's appeal order was 
void, and that judge had the right to vacate that order, and 
did vacate it, and hence it had no existence when the record 
was certified by the district attorney; but had such order re- 
mained in existence, it was not made nor pretended to be made 
at the term when the judgment was rendered, or when it was 
amended by a nunc pro tunc order; and therefore the citation 
issued was a jurisdictional fact, the absence of which rendered 
the cognizance of the Supreme Court legally impossible. 

XXXII. We here feel obliged to call attention to Judge 
Clifford's second narrative of these facts, to show that we have 
done him no injustice in our comments showing the inaccuracies 
of his statement. A certiorari to the clerk can hardly be said 
to have brought up a fuller record; but it brought one more 
comprehensively and consecutively clear. From a remark of 
the learned justice, in 3 Wallace, we infer that the want of 
jurisdiction was again insisted upon, because the opinion in 
1 Wallace had not disposed of all the grounds which had 
been taken. The learned judge falls back upon the opinion 
which we have just reviewed, 3 Wallace, 763. 

But he seems not to be fully satisfied with reasons which a 
fuller record did not sustain. Hence we find him saying: 

" Order allowing the appeal in this case was entered on the 25th of August, 
1862, but on the 6th day of October following a stipulation was entered in the 
minutes that the transcript should be withheld until the next term of the court, 
in order to give the claimant an opportunity to move the court to set aside the 
order of appeal. Such a motion was accordingly made by the claimant ; and on 
the 1st day of the succeeding December and on the 4th day of the same month 
the court directed that the order allowing the appeal should be vacated and set 
aside." 

This unmixed statement corrects the inaccuracy in 1 Wal- 
lace, which was thus: 

"Claimant at once signified his intention to move the court to set aside the 
order granting the appeal, and thereupon {intending to convey the idea that he did 
it then and there in court, and at the time the appeal order was made) it was stip- 
ulated and agreed between the parties that all further proceedings should be 
stayed until the next term of the court." 

When, overruling the motion to dismiss for want of citation, 



88 

it was found necessary to thus jumble and confound the dates, 
so as to make it appear that the claimant "at once' took 
action, and thus waived citation. But when it was necessary 
to find a reason for not obtaining the record and seasonably 
prosecuting the appeal at the December term, 1862, instead of 
the December term, 1864, (which was seven years and four 
months after the judgment,) the true dates are given in order to 
show the cause of delay. But in both statements the fact is 
omitted, which is now made plain to the committee, that the 
demand of Goold, the counsel for the New Idria Mining Com- 
pany, for the record was made in violation of a stipulation 
with the clerk, the district attorney, and McGarrahan's coun- 
sel, that no such demand should be made. The extraordinary 
conclusion of the learned justice may be explained by this 
total misconception of facts. In 3 Wallace, 764, he says: 

" Reason for vacating the appeal, as assigned, was, that five years had expired 
before it was allowed, which is directly contrary to the decision of this court, 
and must be considered as overruled. Although the decision of the court was 
erroneous, still the proceedings under the motion had the effect to prevent the 
appellants, in the meantime, from obtaining a copy of the transcript." 

Can it be possible that the learned judge had for a single 
moment considered the force of this remark ? It is no more 
nor less, in its legal effect, than to assert, that where the court 
refused to grant an appeal, because the time had elapsed, and 
thus the party was left without an appeal, nevertheless if the 
attempted appellant, in any way, can purchase a partial copy of 
the record, and carry it to the Supreme Court, under the pre- 
tence that there has been an appeal, when there has been none, 
he may elicit an opinion that there ought to have been one; and 
afterwards, when the question must be met, he may invoke 
this obiter dicta, made when there was no jurisdiction forwant 
of appeal, as conclusive, because the judge had said that it 
was error not to have granted the appeal. Admitting for the 
sake of argument, that the " refusal was erroneous," yet could 
it be revised without an application for a mandamus? (Crane's 
Case, 5 Pet.) 

In the seventh paragraph (p. 768) the learned judge admits 
that such an application would have been met with the fact, 
that the appeal order had been annulled, and hence did not 
exist. This glaring inconsistency has been noticed somewhat 
in the defense of McGarrahan. (Ante p. 80.) 

In the case of United States vs. Circuit Judges the appeal 
was reached by a mandamus against the judges. (3 Wallace, 
673.) Mr. Justice Clifford concurred in the opinion of the 
majority of the court, delivered, I suppose, on the same day. 



89 

It is a little remarkable that he overlooked the fact, so clearly 
stated in the opinion in the case against the judges, that the 
judiciary act of 1789 and all the subsequent acts confirm the 
right of appeal from "judgments and decrees in civil actions, and 
in suits in equity in a circuit court." (p. 674.) Who believes 
that the mere denial of appeal is a "decree," from which an 
appeal may be had? It may afford a ground for a mandamus 
in a proper case, as was the remedy in this case and in 
Crane's case. (5 Peters.) But to suppose that it can be 
reached in any other way would be a great perversion of the 
general statutes, as well as the special statute governing the 
California cases, which is held to draw to it the analogies 
of the general statutes. It being admitted that the manda- 
mus would be unavailable, because of the fact that the im- 
provident order had been annulled, is a clear legal confession 
that the Supreme Court had no jurisdiction. And the mere 
dictum that the appeal was erroneously refused only aggra- 
vates the grievance of exercising the jurisdiction. 

XXXIII. We claim to have clearly demonstrated that the 
Supreme Court assumed jurisdiction over the Gomez case 
when it had none, for the following reasons: 

1. When at a subsequent term, that is, at the December 
term, 1859, it heard a motion to annul its own judgment and 
recall its mandate issued at the previous term, it had no juris- 
diction, because such a motion could only have been heard at 
the December term, 1859, and at the request of one of the 
judges who had concurred in the judgment. (The Griswold 
legal-tender case.) Therefore it was without power that the 
court heard and revoked its judgment. 

2. That in allowing affidavits to impeach the judgment for 
what it called fraud in obtaining the original decree it exer- 
cised original jurisdiction. 

3. The lapse of over five years after this decree of con- 
firmation before any appeal was prayed or attempted. 

4. The annulment of the appeal order by the court, and 
the fact that there was no mandamus to force the appeal. 

5. The decision, within the jurisdiction of each, by Judge 
Haight, by the clerk, by the surveyor general, by two Secre- 
taries of the Interior, and the action of each within his juris- 
diction that the title had been confirmed; that the time for 
survey had arrived ; that that survey was correct ; that the 
patent was ordered to be issued and was engrossed; and that 
its delivery was only prevented by illegal means. Surely 
this is equity enough. 

6. The order annulling its own judgment and revoking its 

8 



90 

own mandate was coram non judice and without jurisdic- 
tion. 

7. In overruling the motion to dismiss the second appeal, be- 
cause it was not taken within five years from the 5th of June, 
1857, the court assumed a jurisdiction for which there was no 
power, because the judgment and decree in all their parts dated 
from the 5th June, 1857, and not from the 5th February, 1858, 
as stated by the learned judge who delivered the opinion. 

8. In assuming that a citation was not necessary to the 
validity of the appeal, the court violated the settled law, 
that, if the appeal be not taken at the same term at which 
the judgment was rendered, such citation is a jurisdictional 
fact, which cannot be waived by the mere presence of the 
party, or appearance and motion to dismiss the appeal. And 
the record shows that the counsel did no more than to appear 
to urge that motion. 

9. The court had no jurisdiction, because, in fact, there 
existed no such appeal. The same judge who ordered the 
appeal because the five years had elapsed in a regular way, 
upon solemn discussion annulled the improvident appeal order. 
That action annulled the appeal, and he having refused to 
grant another, the point could only be reached by mandamus, 
and not by revising that action when no appeal, in fact, ex- 
isted, and hence the court had no jurisdiction over the record. 

10. That in taking jurisdiction and assuming to adjudicate 
upon the merits of the case, the court acted without jurisdic- 
tion; and in the few comments about the character of proofs 
and the sufficiency of the evidence it violated its own well- 
settled rules of practice, and the statutes of the land. 

11. In reversing and dismissing, it acted without jurisdic- 
tion, because no appeal existed, and no citation had been issued 
or notice served, and there had been no appearance except to 
move to dismiss. And in dismissing, because of the insuffi- 
ciency of the evidence to satisfy the court, the well-settled 
rules of practice, which should have ordered a new hearing, 
were violated. 

12. The order of Judge Ogier, made three years and nine 
months and a half after the decree to set aside his own judg- 
ment and order a new trial, was a gross perversion of law, 
and yet the Supreme Court acted upon it, and upon the order 
of Judge Haight disregarding, it, as though the first was right 
and the last wrong. That high tribunal was thus influenced 
to increase the severe hardship of the claimant, when by the 
constitution, the laws, and universal precedent it had no such 
jurisdiction. 



91 

13. In hearing affidavits at a subsequent term, after final 
judgment in the cause, to impeach the verity of the record, it 
acted without jurisdiction, without power, and without neces- 
sity, because there was adequate remedy in another appeal to 
be prosecuted within five years from the 5th June, 1857. 

14. In commenting upon the false affidavits of Sims, Hart- 
man, and Sloan, and the explanation of Ord, as a reason for 
the action of the court, it was in the exercise of forbidden 
original jurisdiction. 

XXXIV. But it is claimed that the learned judge devoted a 
whole page to the merits of the case, and was not satisfied with 
the proofs which convinced the commissioners of the existence 
of the grant ; and, therefore, we are forever precluded from 
appealing to the conscience of the body politic. We must con- 
cede that there is much logic in the fact that over sixty pages 
are, first and last, devoted by the Supreme Court to the Gomez 
case, and one whole page is given to the title. The points 
considered are : 1st, That there is a discrepancy between the 
petition for three leagues of land and the fact that the party 
asked to be confirmed in four leagues, on the ground that his 
expediente covered a much larger quantity. Let White vs. 
Burnley, 20 Howard, 235, answer that objection. There it 
was ruled that a colonist's grant for two full leagues, when 
the law entitled the party to but one, was no cause of nullity. 

Again, the parol proof of the loss of the last act of the 
governor was not satisfactory to the learned judge. Nor was the 
parol evidence of Sutter of the loss of his testimonio, or second 
original, (the same thing which was lost by Gomez,) satisfactory 
to Judge Clifford; nor was the archive or protocol satisfactory 
to him, because there was missing the disefio, so necessary to 
identity. And the concession and the grant in the protocol were 
wanting in the signature of the governor. But the majority 
of the court, speaking by that learned civilian, Justice Camp- 
bell, was satisfied with the evidence which satisfied the com- 
missioners and the district court of the existence and loss of the 
Gomez grant, and would not give weight to objections for the 
first time raised in the Supreme Court. (United States vs. 
Sutter, 21 How., 174.) In Gomez's case no objection was taken 
to the sufficiency of the evidence or the mode of proof below ; 
and we cannot see how, upon well-settled practice, the court 
could consider an objection never brought up for revision. 
{Ante, pp. 18, 19, 36.) 

" Only paper of probative force called for three leagues." 

Why did not the governor's indorsement of concession, the 
order of the secretary, the report of the judge, and, emphatically, 



92 

the discfio, have as much probative force as the petition? All 
has been shown to be necessary to a complete expediente, and 
the New Idria Company has relied upon cases where the last 
act or grant was held to be deficient for want of these prelimi- 
nary steps. 

Again, " possession was not proved." Nor is it stated to be ne- 
cessary. But then Ord had purchased two leagues of the land, 
and for this reference is made to 23 Howard, 339 — a matter of 
original jurisdiction, tried by an appellate court. 

" Comment is unnecessary, except to say that the confirmation was fraudu- 
lently obtained." 

How could an appellate court try that which exclusively be- 
longed to the court of original jurisdiction ? But if there was 
power, why was not the case sent back for trial de novo upon 
the merits, now that all officials have become honest, just, and 
candid ? 

The subsequent history of the case by the same learned 
judge, when compared with the facts as developed in this ex- 
amination, so appropriately introduced into the question of 
mere jurisdiction, shows how well he understood the remark- 
able character of these proceedings. I allude to the narrative 
in Cox vs. McGarrahan, 9 Wallace. 

Verily I think we have proved a case of extraordinary 
hardship. 

The question, and the only question, in this last case was 
purely one of jurisdiction, resting upon the power of the 
Supreme Court of the District of Columbia to issue a man- 
damus to compel the Secretary of the Interior to issue a 
patent to McGarrahan, as purchaser of this grant, as a re- 
jected claim. The jurisdiction being denied, of course there 
was nothing left for the consideration of the court. But as 
the case had been so remarkably advanced, perhaps it would 
not have been entirely deferential to the Attorney General 
and the counsel who appeared with him, the last graduate 
from that office, who had brought some of the mercurial effects 
from the Panoche Grande quicksilver mines to pass it by. At 
any rate we have a history which asserted the remarkable fact 
that the grant had been three times before the Supreme Court, 
and ''rejected for fraud," when no such intimation is given in 
the comments upon the title. 

In the face of this we are obliged to contend that the grant 
was never before the court, except when McGarrahan brought 
the record there to docket and dismiss, which was done with- 
out reference to the merits, I admit. Nevertheless, under any 
other practice, and in the same court, about any other cases 



93 

except these Mexican grants, it would have been tantamount 
to a confirmation. That is, if the appeal had been perfected 
and then not prosecuted, as in the Gomez case. 

Neither in 23 Howard nor 1 Wallace is there a pretext that 
the grant was before the court. The first was the mere trial 
of a solemn judgment upon contradictory affidavits, every 
material allegation of which is now proved to have been false. 
The second was a motion to dismiss an appeal claimed after five 
years, and which appeal order had been annulled. But now 
these obiter dicta of Justice Clifford are claimed as a fourth 
rejection of the Gomez grant. I challenge the search of all 
judicial history for anything so indefensible as this whole pro- 
ceeding. 

McGarrahan has been assailed for this proceeding against 
the Secretary of the Interior. I do not believe in the power 
of the courts to control the official discretion of the President. 
The proceeding was revived to arrest the pressure which Mr. 
Evarts had brought to bear in behalf of the New Idria Com- 
pany, in contempt of this committee and Congress. I would 
gladly draw a veil over the action of Secretary Coxe as devel- 
oped in his own report; nay, I am so well satisfied that he was 
a grossly-deceived man, that I will never be the one to raise 
the curtain upon that short record. It is enough to say that 
arguments about vested rights were urged by Mr. Evarts before 
Mr. Coxe which have not been repeated here, nor did he invoke 
any of the judicial decisions as precedents to be followed. 

XXXV. It has been urged as against the genuineness of 
the expediente, that a note of the title does not appear upon 
Ximeno's Index. But this is not even a presumption. It is 
thus answered by the Supreme Court : 

" We do not regard that catalogue (' Ximeno's Index') of grants as authorita- 
tive proofs of grants enumerated in it, or as a conclusive exclusion of grants not 
so registered by 'Ximeno,' which may be alleged to have been made whilst Cali- 
fornia was a part of the Mexican republic, though they may bear date within 
the time to which that index relates." (United States vs. West's Heirs, 22 
How., pp. 315, 317.) 

Mr. Justice Field thus stamps such an objection in Angui- 
sola's case : 

" The objection that the grant is fraudulent and void rests mainly upon the 
allegation of counsel that it is not mentioned in the list of expedientes known as 
the 'Ximeno Index.' We say upon the allegation of counsel, for 'Ximeno's Index' 
is not in evidence, nor was any proof offered of its contents ; and, under the cir- 
cumstance of this case, if the facts were as alleged, it would not be entitled to 
much weight." (1 Wall., p. 357.) 

XXXVI. I do not propose to discuss the facts and the demon- 
strations in regard to the survey. That task has been performed 



94 

by McGarrahan's pamphlet upon the Beale survey and by the 
clear demonstrations of Mr. Shaw before the committee. To 
my mind the New Idria Mining Company has performed no 
more shameless fraud against McGarrahan than in this dis- 
cussion about the survey. In all the voluminous record they 
occupy the position of opposing the fruits of the confirmation 
of the Gomez grant, because they knew that it embraced the 
very mines which they occupy, and from which they have ex- 
tracted a million of treasure. This was their excuse for brib- 
ing and suborning Hartman; for employing Goold in violation 
of a criminal law; for causing to be injected a pretended mo- 
tion of Stanton among the papers, and then falsely asserting 
that it was a part of the record ; for seducing Judge Ogier 
from his duty; for suborning Sims to swear against the record 
and deceiving the Supreme Court; for assailing Ord; for en- 
tering into a covenant with Gautierez for obtaining false evi- 
dence; for suborning Gomez to swear falsely and to antedate 
forged and spurious documents; for employing and paying 
Hartman, who received $23,000 from the United States while 
he was betraying McGarrahan; for employing Black, who had 
made such an unblushing report to the President; Goold, who, 
while he had the vice to lend himself, while he was acting for 
the Government, alone, of all the conspirators, had the virtue 
to confess that the title of Gomez was genuine, and such as 
would have been finished by the Mexican authorities; for using 
the Attorney General's office to prevent our getting a patent; 
for appearing before every Secretary of the Interior for the 
same purpose; for appearing before the committees of the Sen- 
ate and the House; for employing hired scribblers to assail 
McGarrahan; for publishing false geography and false maps, 
and assailing and denying the ancient topographical maps of 
the country; for employingcounsel and every possible influence 
to defeat the Gomez grant. All this was done because they 
were upon the Gomez grant, and felt it necessary to defeat it. 
And now they swear by their beards that the boundaries of 
that grant are three hundred, or fifty miles, or some other 
great distance away. 

1. We say that they have no right to be heard in opposition, 
as well because they have estopped themselves, as because 
they are not in a position to intervene. And here I find a 
brief of Judge Black, furnished to Secretary Browning, upon 
"the survey of the Sobrante de San Jacinto grant," from 
which I take the liberty of furnishing some extracts : 

" The decisions and the practice under both acts settle the following rules 
beyond poesible controversy : 



95 

"No objection against a survey can be heard unless it be made in writing to 
the surveyor general within ninety days from the date of the first publication 
in San Francisco. 

"The objector must have a legal interest which would beJnjurionsly affected 
by suffering the survey to remain as it is ; and this interest" he must show dis- 
tinctly. One man cannot object for another. When the claimant, the United 
States, and all third parties are satisfied, their legal and just rights cannot be 
trifled with by a mere interloper, who haB no interest of his own in the survey. 

" When the parties in interest fail to object within ninety days, that is a con- 
clusive admission by them, and by all the world, that the survey is right, and 
the approval of the surveyor general is a judgment by which they are estopped. 

" Where one or more objections are made, such objections are an admission 
that the survey is unimpeachable in all other respects." 

" No party, whether he be interested or not, can come to Washington and 
urge objections here, which he admitted to be groundless, by not producing them 
before the surveyor general when publicly called upon to do so." 

" Or is a claimant at the mercy of every whipster who may be prompted by 
malice or cupidity to annoy and vex him ? 

" But these mining rights can be acquired only on public lands. When a man 
goes upon private property, he does not sanctify his trespass by showing that 
he went there to dig and carry away minerals; he might just as well say that 
his object was to steal the timber or the grain. 

" In Fremont's case, in Fossatt's case, and in a hundred others, it was held 
that wrongful possession of private property, owned by another under a Mexi- 
can title, is none the less wrongful because it was taken for the purpose o! 
mining. The courts of California have carried this principle much further. 
They have constantly held that where any person, for any purpose whatever, 
went upon land which lay within the exterior limits of a floating claim not sur- 
veyed, such person was a mere trespasser, and might be sued as such by the 
owner of the claim. In short, it is well settled that a mining right can only bo 
acquired on lands known and acknowledged to be within the public domain, 
and not liable on any future contingency to be covered by a private title. 

" Trespassers, engaged in mining, were on Fremont's ranche, but they were 
not allowed to stop his patent. The largest mine in the world was worked by 
persons who claimed Fossatt's land under a fabricated title, but that did not 
turn aside the justice which gave the true owner what belonged to him. 

"It has been held by the Supreme Court that the admission of the Govern- 
ment, by it? proper officer, that a survey is right, cannot be contradicted ever; 
by a settler who has bought and paid for the land, or who holds it under a clear 
right of preemption. In other words, all objections to the title of a Mexican 
claimant, or to the location of the claim on lands of the United States, must be 
made by the public authorities, and cannot be made by trespassers or squatters. 
or even purchasers under the United States. 

"When the Government has once decided by its own courts and officers thai 
land is private land, it will not suffer the owner to be molested by its alienees.'' 

These general principles are applicable to the case of Mc- 
Garrahan. Men who entered while the land was acknowl- 
edgedly reserved from ordinary appropriation; who at first 
pretended to claim under school warrants; who have opposed 
our progress at every step, because our grant embraced their 
claim, founded in the veriest trespass, are in no position to 
question our survey, made in accordance with the law. 

It belonged to the surveyor general to determine the locality 
and correctness of the boundaries. The character of affida- 



96 

vits employed in opposition are exceedingly puerile, and they 
are not worthy of consideration. 

Our every call of our grant corresponds with the survey, 
as has been clearly demonstrated by the maps. The law gives 
the right to select the quantity anywhere within the exterior 
boundaries. The argument of Mr. Evarts attempted to destroy 
the whole force of the adjective exterior. 

XXXVII. But we are now told that the title ought not to be 
confirmed, because the rights of others have intervened under 
the mining laws, which have been extended to California; that 
under said laws others have acquired incipient rights, which 
would be overrode by the confirmation of this title; that a con- 
firmation would operate as a legal title back to the date of the 
concession, to the confirmation, or to some other period prior 
to the date of this mining law; and, therefore, no confirmation 
should be had, or else it should be had with a reservation, which 
would protect those innocent squatters. A reference to the case 
of Le Bois vs. Brammel, (4 Howard,) and others of that class, 
will show that when, owing to the laches of a party, the Gov- 
ernment has innocently regranted the land, the incipient title, 
which had no judicial standing until it was confirmed, will 
not override a patent lawfully obtained after the rejection of 
the claim the first time, and before the reorganization of the 
second board. But it has not been heard of, that where a 
party has, in due time, presented his claim and obtained its 
confirmation, which confirmation has been rendered inopera- 
tive by an extraordinary stretch of judicial power, he shall be 
denied the justice ten thousand times accorded to others, 
merely because the conspirators who united to defeat the great 
objects of the Government in favor of the adopted citizens, 
by creating settlements under subsequent laws, clamor for it. 
They are not settlers in good faith, because the claimant's 
title and his vigilant prosecution of it, and the extraordinary 
means by which he had been delayed, were matters of judicial, 
executive, and legislative history. 

That history presented features so marked, so extraordinary, 
so unprecedented, that coming ages will read it with wonder, 
and for no other purpose than to avoid a precedent so flatly 
absurd and unjust. 

A possessor in good faith is one who enters, not only be- 
lieving that he had the title, but who has good reason for so 
believing. (Scott vs. Mather, 14 Tex., 235; Saunders vs. Wil- 
son, 19 Tex., 194; Dorn vs. Dunham, 24 Tex., 379; Green 
vs. Biddle, 8 Wheat., 1 ; Bright vs. Boyd, 1 Story's R«p., 478 ; 
Houston vs. Sneed, 15 Tex., 310.) 



97 

Thus, if the defendant located land knowing of an older 
grant, he is not a possessor in good faith. (Howard vs. Riche- 
son, 13 Tex., 564.) 

He ceases to be a possessor in good faith as soon as suit is 
brought. (Sartein vs. Hamilton, 12 Tex., 222; and see Pas- 
chal's Annotated Dig., p. 894, note 1147, which reviews the 
Spanish and Mexican authorities as to possessors in good 
faith.) 

But one who purchases a litigious claim, who enters pending 
that litigation, who makes improvements as a means of war- 
fare and of defence against the rightful owner, is not a pos- 
sessor in good faith, but a mere trespasser. (See the above 
authorities.) 

XXXVIII. The principle is equally clear that he who makes 
a location upon lands not subject to location, or which have been 
reserved from such general appropriation, cannot be protected 
in such possession. (Menard vs. Massey, 8 How., 293; Hoof- 
nagle vs. Anderson, 7 Wheat., 212.) The State vs. Delesdenier, 
7 Tex., 102, 103, which reviews the whole subject. (See More- 
land vs. Atchison, 24 Tex., 167; same case, 19 Tex., 303; Kim- 
mell vs. Wheeler, 22 Tex., 85; Kimmell vs. Garrin, 22 Tex., 
9; Paschal's Annot. Dig., p. 240, note 410.) 

The acts of Congress withdrew the land covered by Mexi- 
can grants, whether perfect or imperfect, from locations under 
school-land warrants and from ordinary appropriation. (10 
Stats, at Large, p. 246, sec. 6; p. 247, sec. 8; also act of Sep- 
tember 4, 1841, sec- 10; act of March 3, 1853, sees. 6 and 7.) 

The general principle is, that when land is reserved for a 
particular use, or for the satisfaction of certain claims, or the 
construction of railroads, as is now a frequent occurrence ; or, 
as in the case of Menard and Massey, the land is reserved 
from the holders of land certificates, like the New Madrid cer- 
tificates, the Texas head-rights and warrants, the military 
warrants of the United States, the school lands of California, 
and other floats, such reservations cannot be located or appro- 
priated for pre-emption or homestead purposes; and if they be 
so located and ripened into a patent, the patent will be void, 
as is held in Hoofnagle vs. Anderson, Stoddard vs. Chambers, 
(7 How., 285, 317,) and the State of Texas vs. Delesdenier, 
already cited. (And see particularly Kjmmell vs. Wheeler, 
22 Tex., 77; Sherwood vs. Flemming, 25 Tex. Supplement, 
427; Woods vs. Durrett, 28 Tex., 441, 442.) 

The doctrine is fully discussed in Wilcox vs. Jackson, ex 
dem. McConnell, 13 Pet., 498, 499. 

In this case the reservation had been made by the War De- 



98 

partment, and the sale was under the proclamation of the 
President; and yet the purchase was held to be void. In the 
case of the State of Texas vs. Delesdenier, 7 Texas Reports, 
Galveston Island had been reserved from the location of a cer- 
tain class of certificates only ; and yet it was held not to be 
subject to the location of certificates for the public debt, which 
authorized the appropriation of any of the public domain, and 
the patents so obtained were held to be void. 

And in Stoddard vs. Chambers, (7 How., 317, 318,) it was ex- 
pressly ruled, that a patent obtained while the reservation in favor 
of Spanish grants continued was void. That a patent fraudu- 
lently obtained, or issued against law, is void. And in Kimmell 
vs. Wheeler, 22 Tex., 77; Sherwood vs. Flemming, 25 Tex. Sup- 
plement, 427; Woods vs. Durnett, 28 Tex., 441, 442, it was held 
that where a reservation had been declared, no valid location 
could be made within that reservation ; and if made pending the 
reservation, it would be overrode by a subsequent location made 
after the reservation had been determined by law ; for that no 
title could be acquired under the Government during the reserva- 
tion. 

The applicable point in these cases is, that the New Idria Min- 
ing Company could not anticipate the time when the land might 
be withdrawn from the reservation and thrown open to public pur- 
poses, and acquire a right either by locating the land under school 
warrants, mining laws, pre-emptions, or otherwise. When they 
entered, it was not public domain which had been thrown open to 
appropriation, nor is it yet such. Hence under all the laws and 
decisions they did not and could not acquire any interest by their 
mere naked entries. 

In the case of Gomez, the treaty of Hidalgo and the law of 
nations excluded the land from ordinary appropriation, because 
the title was not transferred to the United States. The acts of 
Congress expressly reserved it from appropriation until the final 
adjudication, and there has been no subsequent act of Congress 
for disposing of such reservations. 

These settlers, then, could acquire no right, either against 
Gomez, his vendee, or the United States. They were without 
legal title and without equity. 

The 13th section of the act of 1851 (10 Stats, at Large, p. 633) 
reads as follows : 

"All lands the claims to which have been finally rejected by the commissioners 
in the manner herein provided, or which shall be finally decided to be invalid by 
the district or Supreme Court, and all lands, the claims to which shall not have 
been presented to said commissioners within two years after the date of this act, 
shall be deemed, held, and considered a part of the public domain of the United 
States." 



99 

But observe that it is not said that the land becomes, eo instanti, 
subject to ordinary appropriation, or to any appropriation -whatever. 
On the contrary, it was but restored to the public domain, subject 
to the future action of Congress, which alone has power to make 
needful rules and regulations concerning the public domain. 

As pari materia of the same law is to be considered the 1st 
section of the law of 23d July, 1866, to confirm certain land 
titles to the State of California. (14 Stats., 218; 2 Bright. Dig., 
p. 191, § 3.) There the exceptions to the confirmation include any 
land held or claimed under any valid Mexican or Spanish grant. 
And also the 7th section of the same act, (2 Brightly, § 19,) author- 
izing the purchasers in good faith to enter the land at a minimum 
price. This right is wholly inconsistent with the general law of 
appropriation. These acts show that up to 1846 Congress re- 
garded the lands (even where the Mexican grants had been rejected 
or not presented) as still open to legislative disposition.. The 
intervenor cannot claim that he holds under and for the United 
States; for in the last-mentioned act all such pretences are "ad- 
verse to the United States." 

The maps exhibited to you show that the sectionized sur- 
veys stopped at the boundaries of the Arias, Ursula, and 
Gomez grants. The law of Congress had reserved such lands 
until the final action of the Government; the surveyor gene- 
ral had to determine the locality, and did determine it. The 
other two grants were confirmed; the Gomez grant was con- 
firmed; and no one pretends that that confirmation was in the 
slightest degree impaired until the decision of .the Supreme 
Court in 1866. (The decision was made in April, 1866.) (3 
Wall., 752.) Certainly the reservation continued until that 
day. And, as the court had no jurisdiction, and the Interior 
Department and the President had, in the meantime, officially, 
and within their jurisdiction, decided that McGarrahan was 
entitled to a patent, and caused it to be engrossed in 1863, it 
cannot be pretended that the reservation has ever been thrown 
open to ordinary appropriation. 

Viewed in the light of the very clear cases which we have 
cited, the New Idria Company and those under whom they 
claimed entered as trespassers, and in violation of the treaty 
of Hidalgo, of the public law, and the moral public policy of 
the United States ; they entered upon lands then and yet re- 
served ; and they could acquire no right. The many laws 
affirming those grants after they had been rejected strongly 
support this view. And it is fully maintained in the Frisbie 
case, so recently decided by the Supreme Court of the United 
States, (9 Wall., .) We here furnish the opinion to the 



100 

committee, and print such extracts as will make it intelligible. 
After noticing the rejection of the Soscol grant and the 13th 
section of the act, Mr. Justice Miller says : 

"The Congress of the United States, however, in this emergency, showed them- 
selves to be the representatives of a nation too magnanimous to take without 
consideration the improvements, the labor, and money which had given to this 
land its principal value. As soon as they could assure themselves of the merits 
of the case, and within a few months after the effect of the decision became 
known, Congress passed an act for the benefit of these occupants of the Vallejo 
claim." 

" The proposition is, that as soon as the decree of the Supreme Court was an- 
nounced declaring the Vallejo claim invalid, the land covered by that claim be- 
came public land, subject to the operation of all the law? by which the actual 
settler could secure title to such lands ; and that the steps taken by Whitney in 
this direction had so far effected this purpose, that the act of Congress for the 
benefit of the Vallejo claimants was ineffectual to enable Frisbie to avail him- 
self of the benefits which it was intended to confer. 

" We say the benefits it designed to confer, because we entertain no doubt of 
the intention of Congress to secure to persons situated as Frisbie was the title to 
their lands, on compliance with the terms of the aot, and if this has not been 
done, it is solely because Congress had no power to enact the law in question. 

"The learned court, whose decision we are reviewing, place their judgment 
on the ground that, before the passage of that act, the complainant had acquired 
a vested right in the land which could not be divested Dy any legislation of 
Congress. 

"On the other hand, it will hardly be contended that anything short of a 
vested right in his land could deprive Congress of the right which it has as owner 
and holder of the legal Jitle, and, by the express language of the Constitution, to 
dispose of and make all needful rules and regulations respecting the territory or 
other property of the United States. 

"The essential inquiry in this case, therefore, is, whether complainant had ac- 

Suired such a vested right before Congress, by law, withdrew these lands from 
le operation of the pre-emption acts. 

"It has been argued that no law existed at the time Whitney went upon the 
land, by which unsurveyed land could be legally entered upon with a view to 
pre-emption. But in the view which the court takes of the matter, it may be 
assumed that the lands were open to pre-emption. In this concession we also 
propose to waive the discussion of another question, which presents serious diffi- 
culties to our minds in regard to complainant's right to make a valid pre-emp- 
tion by a forcible intrusion upon land cultivated, enclosed, and peaceably occu- 
pied by another man. 

" But resolving this difficulty in favor of the complainant for the present, we 
are still of opinion that he had not acquired a vested right in the land when 
Congress acted upon the subject. 

X"In the matter of this same Soscol ranch, 11 Opinions, 462, Attorney General 
Speed asserts the same principle. He says: 'It is not to be doubted that settle- 
ment on the public lands of the United States, no matter how long continued, 
confers no right against the Government. * * * The land continues subject 
to the absolute disposing power of Congress until the settler has made the re- 
quired proof of settlement and improvement, and has paid the requisite purchase- 
money. 

"Tnese opinions, written for the guidance of the land department, have been 
received and acquiesced in by the Secretaries of the Interior, and have come to 
be the recognized rule of action in that department. 

" This construction of the law has also been asserted by the courts of last resort 
in Missouri, Mississippi, Illinois, and California; States in which the population 
is largely interested in the liberal operation of the pre-emption laws. (9 Mis- 



101 

souri Rep., 261; 15 Illinois Rep., 135; 8 Smede & Marshall, 288; 90 < 'alifornia, 
650; and Button »8. Fisher, in Sup. Court of California, July term, 1869.) 

"The argument is urged with much zeal, that because complainanl did all that 
wae in the power of anyone to do towards perfecting his claim he should not be 
held responsible for what could not be done. 

" To tli is we reply, as we did in the case of Rector vs. Ashley, (6 Wallace, 142,) 
that the rights ofa claimant are to be measured by the acts of Congress, and not 
by what he may or may not be able to do; and if a sound construction of these 
acts shows that he had acquired no vested interest in the land, then, as his rights 
are created by the statutes, they must be governed by their provisions, whether 
they be hard or lenient. 

"That was a ease also in which it became important to ascertain when a right 

to public land became vested, and though it arose under statutes somewhat dif- 

from the general pre-emption law, the principles asserted there, and in the 

ons cases of Bagnell vs. Broderick, (13 Peters,) and Barry vs. Gamble, (3 

Howard,) strongly support our conclusion in the present case." 

The proposition, that so long as the fee remains in the Gov- 
ernment Congress may pass a law to confirm the equity of a 
claim under the former Government, and thus override any inter- 
mediate equity, that is, any location which may have been made 
upon the hypothesis that the first claim had been lost, or re- 
jected by a judicial tribunal, is more strongly expressed in Hart 
vs. Gibbons, (14 Tex., 213, 216,) by Mr. Justice Lipscomb, who 
had been chief justice of Alabama, and was for twelve years on 
the supreme bench of Texas. In both these States he became 
familiar with the Spanish grants, and no man understood them 
better. As the very explicit authority is accessible to the com- 
mission, we beg that the committee will read it. It is the more 
valuable because the constitution of Texas forbids that any 
retroactive law, or law impairing the obligation of contracts, 
should be passed, and there is no such inhibition upon Con- 
gress. Justice Lipscomb says, (14 Tex., 215, 216 :) 

" The question cannot be regarded as open in this court at this time, as since 
the case of Hosner vs. De Young, (1 Tex. R.,) it has been the uniform doctrine 
of the court that the State did not surrender the dominion and control of the 
public domain until final and complete title had been issued. It was therefore 
competent for the State to extend the time to the appellee, Gibbons, for making 
a return of his certificate and field-notes. And when the time was so extended, 
it, by relation, restored to him his right of possession, from the older location 
and survey over the location and survey made by the appellant in the interval 
between the time when the older location and survey should have been returned 
into the General Land Office and the passage of the relief law extending the 
time. No incipient or incomplete title acquired during the interval could pre- 
sent any legal bar to a restoration of the rights of the first locator. If the 
patent had issued to the appellant before the passage of the relief law, the 
patent would have given him a valid title, not to be affected or impaired by the 
act of the legislature. This doctrine was well discussed by this court in the 
case of Warren vs. Sherman, (5 Tex. R., 441,) and again in Lewis vs. Mixon, 
(11 Tex. R., 564.) The pretension that an incipient title to a part of the public 
domain creates such a vested right as to place it beyond the control of legisla- 
tion cannot be sustained as a conclusion, either from the legislation or from any 
judicial decision." 

The principle of this case is fully affirmed in Jennings vs. 



102 

De Cordova, (20 Tex., 508.) There the relief law was made 
to draw after it a survey before the revolution, and which 
formed a part of the title held to be void. 

We thus see that there can be no question of vested rights. 

XXXIX. This argument certainly sufficiently answers any 
possible equity of those who entered as mere trespassers. The 
pretense that they have an equity under the act of 26th July, 
1866, (14 Stat., 251; 2 Brightly's Dig., 399,) is, of all others, the 
most shallow. The caption of the act itself was a cheat upon 
Congress. But it was not passed until long after this contest 
had been going on for years, and therefore could not control 
the right. But the first section of the act shows that it had 
reference to the "public domain of the United States," not 
to that which was reserved from appropriation, because it was 
covered by a Mexican grant which had been confirmed, sur- 
veyed, and patent ordered and engrossed years before the act 
passed. Nor could it relate to a case like that of Panoche 
Grande and Vallejo, where Congress had taken jurisdiction. 
In their arguments the counsel virtually admitted this when 
they declared that the adverse claimant mentioned in the 9th 
section could not mean a claimant under a Mexican grant, a 
patentee, a pre-emptor, or any other legal or equitable claim- 
ant to the fee, but only another miner. And as the 5th sec- 
tion clearly limits the claim of any one company to three 
thousand feet, where can be the right to claim four hundred 
and eighty acres for the New Idria Mining Company? In no 
possible sense can the act have any application to this case. 

And could the question of good faith possibly arise, it would 
be subject to the principles of the Spanish civil law, embodied 
in the Texas statute, already cited, and the cases in equity, 
also cited, and which are familiar to this committee; and that 
is, that those who entered, believing that they had title, and 
with reason so to believe, must do equity before they can ask 
equity. They cannot oppose the right of the lawful claimant 
to his land; they cannot deny that they are upon his land; 
but they must establish that they entered innocently and 
made valuable improvements before their good faith was inter- 
rupted by contestation ; and against these improvements they 
must account for the rents and profits, use and occupation, to 
be charged against their improvements. We have shown the 
impossibility of their good faith; and the proof shows that 
they must have extracted more than a million of treasure from 
our lands, and they are continuing their trespasses. There 
could therefore be no injustice in patenting over their heads; 
nor would it be unjust to the United States. When these 



103 

men were acting in complicity with the Attorney General's 
employes, we demanded of that office that it should stay the 
hands of the destroyer; that this rich company should be 
enjoined, and the monstrous spoliation arrested. This is shown 
in the correspondence with the Attorney General's office. 
But while the Goolds, the Hartmans, and the Blacks were 
being paid $50,000 by the Government for making this war, 
and a larger sum by the New Idria Company, it ought not to 
have been expected that a claimant under the Mexican treaty 
could prevail. The application was refused. And this was 
done in the face of the fact, that if there existed any trust 
against Ord, that trust was based upon the principle that, if 
it was unlawful for Ord to purchase from Gomez pending the 
claim, his purchase inured to the benefit of the United States. 
And the most that could ever have been said against McGar- 
rahan would have been, "You were put upon notice, and you 
hold the Ord interest for the United States." We do not 
admit such notice or such equity as against McGarrahan. 
But we say that, at the worst, the New Idria Company was a 
trespasser against the United States as well as McGarrahan, 
and they cannot urge any ground against the confirmation. 

XL. I think it proper to notice a good many points upon which 
great stress has been laid, which are wholly immaterial to the 
controversy, except so far as they show the exceeding hardship 
which the applicant has suffered in this contest, and hence his 
stronger equitable claim. 

1. Judge Black, in his letter to Meagher, in his statement 
here, in his argument before the Supreme Court and elsewhere, 
laid stress upon the fact that the prayer of appeal from the 
board of land commissioners to the northern district court of 
California was in the handwriting of Pacificus Ord, the counsel 
who prosecuted the case before the commissioners, but was 
signed by E. O. Crosby, who appears in the case no more. 
This is actually made an ad captanditm kind of make- weight in 
one of the judicial opinions, and its immateriality and inappro- 
priateness there has been the subject of comment. (Ante, p. 56.) 
The answer to this is, that no such paper was necessary, since 
to have filed the transcript with the clerk was, ipso facto, an 
appeal under the amendatory act of 1852. (See ante, p. 37.) 

You all saw how prostrate Judge Black fell before the refer- 
ence to this law. The mean purpose of constantly referring to 
this fact can only be explained by the fact that the impression 
thus sought to be established was, that Ord was thus transfer- 
ring the case to his own district, in order that he might perpe- 
trate the fraud which they allege he afterwards perpetrated, 
Whereas he was sending the case to the northern district 



104 

where, had the court had jurisdiction, he might with propriety 
have prosecuted the claim. But the locus in quo of the land 
gave the jurisdiction, and hence we find other counsel appearing 
in the cause, and having it transferred to the southern district, 
where it belonged. Let us then take this Crosby paper out of 
the controversy, as wholly immaterial, and with it we get rid 
of the gratuitous innuendos, that there was a purpose in chang- 
ing the venue. 

2. Equally immaterial is the statement, often reiterated, that 
Ord did or did not cause Hartman or Sloan to remove the cause 
from the northern to the southern district court. A mere sug- 
gestion to the judge, that the land was beyond his jurisdiction, 
would have made it his imperative duty to strike the case from 
his docket. And whether he ordered it to be sent to the south- 
ern district or not, Gomez might have carried the transcript to 
the court and had it filed and the case docketed, when it would 
have been the duty of the court to have tried it as an appeal 
case, upon the evidence certified and such new evidence as 
should be offered. 

3. Equally immaterial is it whether Hartman read the papers 
and made a two-hours' speech, as he said he did, or whether the 
case was merely called, as Judge Ogier intimates it was. The 
order of reversal and confirmation was made, and it was the 
duty of the judge to know what he was doing, and the pre- 
sumption of law is that he did know. He does not deny that 
he knew that he was acting alone upon the evidence which had 
been heard before the commissioners ; and he admits that he 
knew that he reversed the judgment and confirmed the title. He 
knew that he was trying the case de novo, and the fair presump- 
tion is, that the papers were read, and that he acted under- 
standing^, and if no defence was made, the most impregnable 
judgment is the one nihil dicit. 

4. The flippant speculation by the Supreme Court reporter, as 
to why no formal decree was rendered at that term, (June 5, 1857,) 
is entirely impertinent. The order entered was a confirmation of 
the title. Upon that order the Government might have appealed. 
Upon it the district court might have ordered the survey, and thus 
have ascertained the boundaries ; and, such survey being approved, 
the judgment could have been certified for patent. In a word, it 
was sufficient for every legal purpose. 

In form and in substance the order of 5th June, 1857, was all 
that the law required. It was all that the judgment of a court 
ever need be. The court adopted the facts found by the commis- 
sioners, corrected their error of law about possession, and, consid- 
eratum est, confirmed the title. This consideratum est is all that 
can ever properly go into a judgment. The special verdict, or 



105 

that which precedes, can always be consulted as facts. But those 
facts need not be embodied in the decree. 

5. Hence all the discussion about the effect of the nunc pro tunc 
decree, and as to who drew up the decree and amended decree, is 
wholly immaterial, just as those were themselves unnecessary. 
The judgment of the court determined the right; all else was mere 
matter of form. The time dates from the 5th June, 1857. 

6. Equally immaterial is all the outcry about the original peti- 
tion being for three leagues of land and the diseno and other 
proofs being for four leagues. No such question goes to the original 
right. (White vs. Burnley, 10 How., 235, 249.) As in Califor- 
nia there were no surveys, the diseno or map had to be consulted. 
If that gave four leagues instead of three, it could not have been 
a question of original nullity, even had the law limited the quan- 
tity which could have been granted to Gomez to three leagues. 
The excess would have been entirely a matter for the Government. 
But as the law allowed persons of this class to receive eleven 
leagues, there is no question of concealed lands. 

7. So far as the United States is concerned, it is really imma- 
terial whether the appeal order of 15th March, 1851, had an ex- 
istence or not, and so as to any effect of the docketing and dismis- 
sing. I mean as to the legal right. It is admitted that the appeal 
was docketed and dismissed on motion of appellee, not appellant. 
The legal effect of 'that is denned in a number of cases by the Su- 
preme Court. (Pacheco et al., ante p. 39) So that, if you take 
away this docketing and dismissal, the right of the United States 
was to appeal within five years; if you let it stay, their right was 
no more, no less. We thus get rid of the abominable practices of 
Sims, Hartman, and Sloan, and the original jurisdiction by the 
Supreme Court in the case. (23 Howard.) 

8. In this view the recalling the mandate could not benefit the 
United States. The right to appeal existed in the United States 
at any time within five years, but not thereafter. That precedent 
to us is useful in showing the hardship ; the frauds of the New 
Idria Company; the improper exercise of power by the Supreme 
Court; and the pregnant fact that all further action of that court 
was based upon this one false exercise of original jurisdiction. 

Therefore, the real material questions are, Did the district court 
have jurisdiction of the subject-matter'? Did it render a legal 
and valid judgment % And did the United States appeal a second 
time at all? and, if so, was that appeal within five years ? These 
are the great questions in the case. We may, therefore, subtract 
from the record the monstrous and scandalous return of Judge 
Ogier ; his absurd order vacating his judgment four years after 
it was rendered ; the void motion of Stanton, never filed, never a 
part of the record, because neither filed nor acted upon ; the ter- 
9 



106 

rible swearing in Flanders by Sims, Sloan, Stetson, et id omne 
genus; the order filing the mandate ; the foolery of Ogier about 
the six other cases ; the befogged correspondence of Bates, which 
has no other apology, except that it was written by Black; the 
injunction of McGarrahan, and the very sensible opinions of 
Haight; and all else which befog and becloud. And yet there 
still remain certain material facts about which there is no dis- 
agreement. Those facts are : 

1. The proceedings before the land commissioners, and what 
was proved and judicially and specially found there. 

2. The filing that record in the district court and the judgment 
of confirmation thereon. 

XLI. I think we have established and made clear these 
general propositions. 

1. That the Constitution expressly confers upon Congress 
the power to make needful rules and regulations respecting the 
territory and other public property of the United States. 

2. That by the laws of nations, natural equity, and our own 
treaties, whenever the United States acquires foreign territory, 
either by purchase or conquest, it is received with the burden 
of all titles, legal and equitable, which the previous sovereign 
has ceded to the inhabitants or others ; and that in respect to 
imperfect or inchoate titles the only inquiry with our own Gov- 
ernment and all other civilized Governments is, and always has 
been, has the party such property as might have been ripened 
into a title had there been no change of the sovereignty ? 

3. That in pursuance of this general principle the treaty of 
Guadalupe Hidalgo did recognize and bind the Government to 
confirm the Gomez grant. 

4. That the board of land commissioners appointed under 
the act of 1851 did hear evidence in regard to the Gomez grant ; 
that the expediente upon which they passed was genuine ; that it 
was an archive found in the right place ; that its authenticity is 
not now seriously or honestly questioned ; that the last act 
called the grant was sufficiently proved, and the loss sufficiently 
accounted for ; and that the commissioners, having thus found 
the facts which authorized a confirmation, found an immaterial 
fact in regard to possession ; and, mistaking the law in regard 
to possession, it rejected the title, when it ought to have con- 
firmed it non obstante veridicto. 

5. That the appeal to the district court was regularly and 
properly prosecuted; that the jurisdiction of that court was 
lawfully and regularly obtained, and that court, upon the evi- 
dence, as found by the commissioners, and the law, as expounded 
in Fremont's and Yorbo's cases, and now generally acknowl- 
edged, on the 5th June, 1857, confirmed the title, and that a 



107 

nunc pro tunc decree was rendered at the next term, in January 
and February, 1858, thus making the unnecessary and more 
formal decree of confirmation date back to 5th June, 1857. 

6. That the United States regularly appealed from this 
decree ; that the appeal was not prosecuted, although regularly 
sent to the office of the Attorney General; that the record was 
discussed with that officer, and, the United States not prosecut- 
ing the appeal, it was docketed by the counsel of Gomez, the 
motion to dismiss considered upon the record, and the appeal 
dismissed, and the mandate of the court regularly issued. 

7. That, notwithstanding all which has since transpired, 
that decree of confirmation and that mandate still remain in 
force, unimpaired by all subsequent action. 

8. That the subsequent action of the courts, which is sup- 
posed to have impaired that decree, was obtained by fraud, 
false suggestion, forgery, and perjury, and that all such actions, 
in ordering a rehearing in the district court, revoking the man- 
date, in entertaining jurisdiction of the appeal, in hearing and 
reversing, were without jurisdiction, and such action does not 
impair the judgment of confirmation. 

9. That the district court, the clerk, the surveyor general, 
the Secretary of the Interior, and the President, who had ex- 
clusive jurisdiction of the subjects-matter on which they passed, 
after the five years for prosecuting a second appeal had expired, 
rightly decided that the term had elapsed, and ordered the 
issuance of a patent, and that a patent, upon a lawful survey, 
was engrossed. 

10. That the issuance of this patent was wrongfully arrested 
by the illegal, fraudulent, and improper action of interested 
parties, who employed fraud, false suggestions, and perjury to 
attain their ends ; and this action was not in the interest of the 
United States, but of a combination of persons who had entered 
upon the property with full knowledge of the Gomez grant and 
the confirmation of that grant. 

11. It has been shown that the New Idria Mining Company, at 
every step, has been guilty of male fides and the worst of faith. 
Among other things, this bad faith consists, in taking posses- 
sion, while the land was reserved from location or claim, adverse 
to the United States ; in prostituting the Government officials 
and special counsel of the United States to forsake their trusts 
and become the counsel of a corrupt combination ; in causing 
the counsel of Gomez to forsake their trusts and perjure them- 
selves in regard to their retainer and services ; in urging an 
immaterial tact, known to be false, in regard to the appeal from 
the commissioners ; in asserting and proving by perjured wit- 
nesses that there was no appeal to the Supreme Court when 



108 

there had been an appeal ; in asserting and causing high officials 
to ass< it that the Gomez title was a forgery, statements made 
either rashly or when they knew such assertion to be false ; in 
procuring the Supreme Court to take jurisdiction of original 
matter when it had no such jurisdiction ; in falsely asserting 
that there had been no appeal to the district court, and no 
appeal to the Supreme Court, when these conspirators knew 
both these statements to be untrue ; in slandering McGarrahan, 
because he objected to the motion of Mr. Stanton being in the 
appeal record, when they knew that Stanton was never sent to 
the southern district of California, never had any jurisdiction 
there, never filed any motion there, and if such motion bearing 
his name was ever lodged with the district clerk, it was lodged 
in vacation, and more than two terms after the rendition of final 
judgment, and they knew that such paper was never acted upon, 
and, therefore, was not legally in the record, and yet they 
falsely asserted that it was in and of the record, and induced 
the Attorney General to assert this falsehood to the Supreme 
Court, and thus deceived that court into the belief that when 
they docketed and dismissed, and when the mandate issued, 
there really was a motion pending for a rehearing, when there 
was none ; in inducing the district judge, by corrupt, false, and 
fraudulent means, to pretend to set aside the decree of confirma- 
tion, and to order a rehearing, when they well knew the judge 
had no such power ; in alleging it to be a crime and a fraud on the 
part of Pacificus Ord to write an appeal-order, signed by Crosby, 
appealing the case from the commissioners to the northern district 
court of California, when, had the land been within that district, 
such a course would have been eminently proper, yet they 
knew that such a paper was wholly immaterial; in falsely as- 
serting that the case was not removed from the northern to the 
southern district by Hartman and Sloan, when they knew the 
contrary to be true; in meanly causing it to be asserted as a 
crime against Ord that he caused the venue to be changed to 
that district when the location of the land gave to that court 
exclusive jurisdiction over the appeal; in falsely asserting that 
Hartman took no action in moving the confirmation in the 
district court, when the very contrary was true; in willfully 
suborning Hartman to betray his client and to make this false 
oath; in raising a great hue and cry that Ord made no de- 
fence as district attorney, when the law entitled Gomez to a 
trial upon the evidence heard before the commissioners, and 
such new evidence as might have been discovered; and now, 
after thirteen years of the most extraordinary exertions, and 
the employment of every means to make good the unsupported 
slanders of Attorney General Black, no line of newly-discov- 



109 

ered evidence lias been produced to show that Ord could have 
made any other defense or have done or said anything which 
would have changed the result; in pretending that Ord's in- 
terest rendered the decree of confirmation void, when, at most, 
it was voidable as against Gomez, if there was any fraud at 
which ho connived, and these very parties have always stood 
in the way of investigation; in taking out commissions and 
taking the evidence of false and suborned witnesses, who were 
paid by the United States and by the said New Idria Company; 
in procuring letters rogatory to procure false evidence; in pro- 
curing the false affidavits of Sims, and his erasures and falsifi- 
cation of the record, and the false affidavit of Hartman; in pro- 
curing a partial, false, and immaterial return of Ogier, wherein 
was interpolated the pretended motion of Stanton, as a paper 
"filed," when they knew such paper ("W") had never been 
filed; in using the recitations of a motion of Kewen for appeal 
by Kewen, as taken under advisement, when they knew that no 
such paper had ever been " filed," as twice falsely stated by the 
judge, and that the notice of such filing had most probably 
been interpolated into the minutes without any paper to sup- 
port it; in contending before this committee that the Stanton 
paper had been- filed, when the certificate of Sims shows 
that it had not; in denying that the appeal had been taken 
by Ord, when the records of the district court and of 
the Attorney General showed the very contrary; in sup- 
pressing that record of the Attorney General and causing him 
to assert against it, after he had acted upon it and dismissed the 
Carilla appeal in the same appeal order, and after he had read 
and caused to be epitomized Goold's false, corrupt, and corrupting 
letters; in locating the land under school-warrants, when they 
well knew such warrants were not permitted to be located on min- 
eral lands ; in entering into a covenant with Gautierez for perjury, 
subornation of perjury, bribery, and forgery, in order to defeat 
the Gomez grant; in procuring Gomez, under that covenant for 
crime, to swear falsely and to fabricate and antedate papers, which 
evidence they were forced to abandon after the criminality had 
been exposed; and now, before this committee, to lugubriously wail 
that an honest clerk had betrayed them by allowing the exposure 
of this monstrous crime; in inducing Bates, Attorney General, to 
allow a hired ex- Attorney General to conduct the correspondence 
of that office, and to urge upon special counsel, known to be in the 
employment of the New Idria Company, to demand an appeal ; in 
threatening the clerk and cajoling the judge, and trying, through 
Black, to force Wheeler and to persuade Haight to certify on ap- 
peal, when they knew that none existed; in urging an appeal after 
they knew that the time for appeal had elapsed; in inducing the 



110 

district attorney to suffer himself to be used by Goold to procure 
an appeal order after the expiration of five years from the date of 
the judgment; in inducing Goold to demand a record with this 
annulled appeal order, when there was a stipulation that no such 
demand should be made until further hearing ; in not respecting 
the judgment of the district court annulling that improvident 
order; in procuring the district attorney in another district, 
when he had no jurisdiction in the premises, to certify a pre- 
tended record for $300 in gold; in causing that record to 
be stuffed with hundreds of pages of false, spurious, and 
fabricated matter, in nowise properly in the record, and ex- 
cluding therefrom the whole of the proceedings before the 
land commission, the order of appeal, and other matter which 
properly belonged to the record; in putting into that record 
an order of appeal which they knew to have been estreated by 
order of the court, and thus deceiving the Supreme Court into 
the belief that there was a second appeal, when they well 
knew there was none, and the associate justice into delivering 
an opinion of all others most marvellous; in filing that record 
with the annulled appeal order, which had been made five 
years two months and twenty days after the decree of con- 
firmation, without the jurisdictional fact of citation, and then 
pretending and deceiving the justice into the assertion that 
no citation was necessary, because of the pretense that the 
appeal was granted as of the term when the decree was ren- 
dered, and because the appellee was then present, and imme- 
diately took action to set aside the order, both of which 
assumptions the said New Idria Company knew to be untrue 
and to be contradicted by the record — they also knew that 
even if there was an appeal, (and there was none,) a citation 
issued was necessary to the jurisdiction of the court, and 
could not be waived; in opposing the issuance of a patent to 
McGarrahan after the Secretaries of the Interior and the 
President had rightfully ordered it, and had caused it to be 
engrossed; in claiming a patent in the face of the resolution 
of this House forbidding it; in asserting, against law, that an 
order to postpone was a final disposition of McGarrahan's bill 
by Congress, when they knew that, by parliamentary law, it 
was not; in causing the Secretary of the Interior to disregard 
his own promise to this committee not to issue a patent to the 
New Idria Company; in claiming four hundred and eighty 
acres under a law which, at most, could give the company 
two thousand feet, and could give none as against an adverse 
Mexican claim before Congress for confirmation; in pretend- 
ing that all their action was in behalf of the United States, 



Ill 

when every benefit was to result to the most unscrupulous 
corporation; in inducing the Attorney General to take action 
in prosecuting error and advancing a cause on the Supreme 
Court docket, under the pretense that he was acting for the 
United States, when they well knew that he was only acting 
in connection with hired counsel, whose unscrupulous client 
was to be the only beneficiary; in the most shameless perver- 
sion of law and fact before this committee, and the most wan- 
ton abuse of McGarrahan, without a single fact to sustain them ; 
in using the copy of a grant and diserio before this committee 
having a false date, and omitting the name of Governor Pico, 
which would have corrected the date, thus showing the base 
purpose for which the Yorbo diseno had been used, when it 
was apparent that it had been copied from the Gomez grant, 
thus leaving a fair inference as to where the lost act of the 
Gomez grant had gone; in changing the name of streams and 
denying the truth of ancient maps, bearing the true geo- 
graphical place and names of the Santa Ana river and Pano- 
che Grande; in persisting in the now-exploded charge, that 
the Gomez expediente is forged, after it is fully proved as an 
archive record, and after that same company had photo- 
graphed it and published it to the world as true, but falsely 
asserting that it was wrongly located upon the Santa Ana river, 
although bounded by other calls and confirmed grants; in 
claiming valuable improvements, when the minerals extracted 
from the land greatly overpaid them; and in every effort 
before this committee to deceive its members as to the true 
facts and history of the case. These many perversions entitle 
that company to no favor. 

XLII. Gentlemen of this committee, my task has been per- 
formed as best I could perform it. I can only regret that the 
work had not fallen into abler hands; yet into those more experi- 
enced in such matters it might not have fallen. That experience 
caused me to be selected for the task by the claimant, then to 
me an entire stranger. He chose me, because of the evidence, 
somewhat known to the public, that I had given many years of 
labor to causes like his own. I had learned them in practice 
and judicially in a part of the country ceded to the United 
States by the treaty of Ildefonzo. I had cast my fortunes at 
an early day in that country, properly transferred to our 
Government by that treaty, but retroceded, as I may say, ^ 
by the treaty of Florida, as you will see in the great case of 
Foster vs. Neilson. (2 Peters, 253.) I allude to Texas, where 
I have spent the best years of my life. Could there be a country 
more favourable to the land lawver and student of revolutions 



112 

and their consequences than one which, for a century, has 
been the scene of revolts and dissensions, and which within 
fifty years has passed through the transitions which separated 
Mexico from Spain, Texas from the dictation of Santa Anna, 
transferred the infant republic, by annexation, to the United 
States, tore it away by secession, and marshaled it under the 
flag of the revolted Confederate States, restored the State 
through the anomalous agency of two provisional governments, 
and replaced it the other day, with its representation in the 
Union, with a people convinced against their will, and many 
still all the more unconvinced. Of course I have been obliged 
to learn that revolutions, however conducted, are always more 
or less subversive of individual rights. Justice to the con- 
quered or the conquerors cannot always be done ; and hence 
the remark attributed to the great Napoleon is proved by the 
experience of all history : " That the most successful revolu- 
tionists rarely live to enjoy the benefits of their own achieve- 
ments.'' We have just passed through a mighty revolution — 
one which has greatly changed our entire organism, and 
carried the boon of freedom and the great heritage of citizen- 
ship to one-eighth of our entire population, and has taught all 
to look at liberty, not as a thing which gives freedom to the 
white man, while it enslaves, despoils, and destroys all who have 
been touched with a tinge of color. 

When as a student of the Constitution and of the philoso- 
phy of the law, seeking to repair a fortune broken and de- 
stroyed by a revolution which I had always opposed as un- 
wise, unphilosophical, irrational, and impossible, I took the 
advocacy of McGarrahan's case as a matter of business, sup- 
posing that he had a right which had been in some way over- 
looked, not presented, or not proved. Such a casus omissus 
had been provided for by the acts of 1824 and 1846, in refer- 
ence to the Spanish grants in Louisiana, Arkansas, and Mis- 
souri, and by such as were revalidated by the constitution of 
Texas of 1845, the acts of 1850 and later, and by the court 
of claims laws in that generous State — history and acts of 
justice to the citizen, part of which I was, and all of which 
I saw. I did not suppose that I was to deal with a cause of 
such remarkable peculiarity. I could not believe it possible 
that I was to advocate a cause where one individual had 
suffered so much from sordid avarice, the baseness and 
cupidity of corporate wealth, and from official injustice. I 
confess that my investigations have greatly lowered my esti- 
mate of the highly elevating and moralizing influence of dis- 
tinguished official responsibility. 



113 

To me it has been a most ungrateful task to deal with these 
painful transactions. But I have never been a character to 
shrink from all the responsibilities of the advocate. Whoever 
else in this world may carelessly pass over facts, misapply law, 
shrink from duty, or learn to palter in a double sense, the law- 
yer who clearly comprehends the high moral obligations of 
his profession has no right to leave anything connected with 
his client's cause veiled and hidden from public gaze, if there- 
by he would compound the interests of the injured litigant. 

The case of William McGarrahan is well calculated to ex- 
cite your sympathy as well as to awaken your keenest sense 
of justice. He possesses all the noblest traits of an Irish 
gentleman. With all the enthusiasm and the hope of the 
youth of that race he sought our shores, in the firm belief 
that our great repnblic guarantied the highest liberty and 
the greatest security to every American citizen, native or 
adopted. Upon our western borders, at the Golden Gate, he 
embarked in commerce. He solemnly believed that all our 
officials were honestly engaged in the faithful execution of 
the treaty of Guadalupe Hidalgo. Relying upon the faith of 
the judicial tribunals and the solemnity of judgments, in an 
unfortunate hour he purchased the confirmed grant of Gomez. 

He knew not of the amalgam there which was so soon to 
draw together men of wealth and of official and semi-official posi- 
tions to work his ruin. You have seen through what a drama 
he has passed. But against all this odds he knew his rights, 
and has dared to maintain them. He has not only had to 
endure the misfortune of defeat, but to suffer the severest as- 
saults upon his character. Every agency which unscrupulous 
wealth, extracted from his property, could employ, has been 
purchased to defeat his rights and blacken that which is 
dearer to the high-toned Hibernian than all the gold of the 
world. 

But he stands before you to-day without a single stain 
upon his honor or a single act of impropriety during all this 
controversy. No official, no member of Congress or Cabinet, 
no one who moves in the atmosphere of the courts, can point 
to a single act of McGarrahan's not marked by the strictest 
integrity. The avarice of great corporations and monopolies, 
the blindness and errors of men, the malignity of hired scrib- 
lers have sometimes heaped upon him the most unmerited 
abuse. But although broken in fortune and almost dependent 
upon charity, he walks erect to-day with the proud recollection, 
that in carrying his bill through the last Congress, in this House, 
he employed no lobbyist, asked the aid of-no counsel, appealed 



114 

to no man outside of this committee-room; and he adopted the 
same course in the Senate, until it became necessary to openly 
meet an array of ex-Attorneys General and assistants. He 
whispered no temptation to any man to whose arbitrament has 
been committed his cause. Honest and truthful himself, he 
scents the liar and the corruptionist from afar off. Blessed 
with a powerful memory and clear perceptions, he detects 
every falsehood and unholy combination arrayed against him, 
and he presently marshals the proofs, to - the confusion of his 
adversaries. While they, with all their wealth, have a once 
mighty power in the Government, when it was rocking and 
trembling and tumbling to pieces under his leadership, complain- 
ing here that their $11,000 paid him was not enough for his 
potent services, the henchman of that official, Goold, after 
pocketing thousands, suing them for $30,000, Gautierez suing 
them on their contract for crime for $50,000, others for the 
percentage promised for their subornation, another, who had 
lent himself, suing them for libel, and still others complaining 
of bad faith in their failure of payment for services quite as 
delicate, you saw the undissembled scorn with which McGar- 
rahan curled his lip, when in this committee-room, the unsup- 
ported and gratuitous charge was made that his stock, never 
upon the market, was being used to corrupt this Congress. He 
is here the noblest work of God, a poor and honest man! 

Were it possible for this man so to degrade himself, he could 
not contend with the Bank of California and the New Idria 
Company and their well-paid lobby. 

To you, as the representatives of this great nation, he makes 
his last appeal. Grateful as he and his counsel are for your 
kind indulgence and your careful investigation of every fact 
and every legal proposition, he intends to abide your report as 
the final judgment as to his rights. You, as the Judiciary Com- 
mittee, are the law advisers of your House. You have evinced 
too great earnestness, for him or us to doubt your ability to 
unravel all the tortious facts, and to apply the law to the case. 
If your decision should be adverse, however well convinced he 
may remain as to his rights, he will never blame, never censure, 
never doubt your entire sincerity. 

Gentlemen, there is with me a lesson always taught me by a 
good and wise father, which has made a stronger impression on 
me through life than the theology which I hear from the pulpits. 
It is, that neither emperor, king, potentate, state nor church, can 
afford to do injustice to the humblest of God's creatures. There 
is a retribution even here, though not always quite discernible 
to us. Vengeance is the Lord's, and he will repay. His attri- 



115 

butes will not allow him to be unjust, and men cannot practice 
injustice with impunity. There are those here who heard me 
proclaim this faith during the severe contest for the southern 
Union sufferers and the faithful freedmen of the South, after they 
had been given over to their enemies. Time has but strengthened 
my faith. This great nation cannot afford to be unjust against 
its adopted citizen, William McGarrahan. There would be a 
retribution when we should seek to enlarge our area of freedom 
by annexing more States and peoples, and acquiring more lands 
for the thousand millions who will people this continent within 
the next three centuries. 

For one, I fear not this injustice. I believe that this Con- 
gress will accord to McGarrahan his rights so long withheld. 



INDEX 



Appeal to the district court, 36-38. To the Supreme Court, 38. Attorney Gen- 
ral'a docket of, 38. Supreme Court's action on, 38. Effect of docketing and 
dismissing, 39, 40. Party could get his patent, subject to new appeal, within 
five years, 39, 40. This changes the ordinary rule, 40, 53. Must be pros- 
1 within five years, 37. Practice in regard to, explained, 39, 40. The 
remedy in the Gomez case would have been a second appeal, 40, 41. Such 
was not prosecuted nor attempted within five years, 41. False assumptions 
about this, 41. How it occurred, 41, 42. Judge Haight, Wheeler, the surveyor 
general, two Secretaries of the Interior, and the President determined that 
there was no appeal, 43, 44. Their action was within their jurisdiction 
and conclusive, 43, 44. The history of this matter and Sickles' letter 
proved, 44 to 46. The Secretary of the Interior took jurisdiction before the 
court acted, 46. Proved by the records, 46. Supreme Court could not re- 
verse the action, 44, 47. 
The order of 15th March, 1858, allowing the Gomez appeal, did exist and was 
genuine, 61, 65. Second not asked until the five years after judgment had 
elapsed, 81, 82. 
The second was from the judgment of 5th June, 1857, and it was not asked 
until 25th August, 1862, 81, 82, 87. Five years having elapsed, this court 
had no jurisdiction, 83. Not having been granted at the term, citation was 
a jurisdictional fact, 83, 87. Appeals can only be had in the mode pre- 
scribed by Congress, 86. 
The judge having rescinded his order, there was no appeal, 81, 84. If in 
open court at another term there must be citation, 85, 87. Can only be 
had from judgments and decrees, not from mere orders, 89. 

Appeal from the land commissioners. No petition necessary under the act 
of 1852, 36, 37. Malice against Ord about the E. O. Crosby petition, 37. 
Immateriality of that paper, 37, Filing the record sufficient, 37. 

Arias grant, (Real de los Aguilas,) called for by Gomez, confirmed, 9. 

Attorney General. Great powers of the, 17, 18. Boast of Black's influence, 
18. His docket about the Gomez case, 38. Effect if he docketed and dis- 
missed, 40. 

Black acted upon the Ord appeal, 63. Knew of it through Goold, 64. His 
docket entries, 38. Misstatement in his motion, 65,- 6Q. His argument 
upon the survey, 94, 95. 

Calendar of time eternal, 41, 77. 

Clifford. Opinion of Justice, in 1 Wall., criticized, 72, 73. Same in 3 Wall., 77, 
83. His mistakes about the second appeal, 82, 83. 

Commissioners. The law which controlled their action, 5. Their duties under 
the treaty defined by Nelson and Field, 18, 19, 36. 

Coleman. His first letter to McGarrahan, 67. His transcript omitted every, 
thing in the district court, 67. Second record not made by, but by Stetson- 
68. 

Colonization laws. The equitable rights of the colonists under them, 9, 10. 
Perfect title not necessary under, 19. Law of 1823, the concession the 
inviolable law of property, 20. The rule explained, 20-23. The rights of 
the Mexicans under the 9th article of the law of 1824, 26. Preference 
allowed to Mexicans for service or merit, 26. No condition as to the 
eleven leagues, 26. The qualities of land explained, 26, 27. Agricultural 
land explained, 26, 27. The limitation of eleven leagues explained, 28. 



118 

Difference between national and State colonization laws, 28. The system 
committed to the States, 28. The national government to colonize the 
territories, 28. Hence the regulations of 1828, 28. These regulations 
where found, 28. Only 8th and 9th regulations apply to grants to Mexi- 
cans, 28, 29. These but directory, 29. Rules as to secondary evidence, 
when paper lost, 29. 

Concession. Distinguished from the grant, 9, 10. Date of concession becomes 
the inviolable law of property, 20. Why this is so under every govern- 
ment, 20-22. Colonization law concerning, 20. 

Conclusion of the whole matter, 111-115. 

Conditions may be exacted by the Government, but not by locators, 12. 

Have no application to Mexican grants of eleven leagues, 31-34. Intro- 
duced into Texas by the State laws, not the national, 9, 10, 11. Cultiva- 
tion not a necessary condition, 32, 33. Such conditions applied only to the 
empresario and colonists' grants, 33, 31. 

Confirmation. Judgment confirming the Gomez grant, 37, 38. This deter- 
mined the right, 38. No amendment necessary, 38. Attorney General's 
docket of this confirmation, 38. McGarrahan purchased on faith of, 48. 
Still in full force, 48. The subsequent action of the courts has not impaired 
it, 45-75. Has become final, 43-46, 47, 48. Why not conceded by the 
court, 72. 

Congress has plenary power over the subj ect, 1-5. The misinterpretation of this 
clause in the Dred Scott case, 1-3. Has power until patent issues, 96-102. 
Reason for appeal to, 18, 24. 
Why the claimant appeals, 1-5. Its power over the public lands until the 
patent issue, 99-102. McGarrahan's final appeal to, 112-115. 

Court, Supreme, not infallible, 1-3. Its errors in obiter dicta and as to juris- 
diction in the Dred Scott and Gomez cases, 3. Docketing and dismissing 
in, 39, 40. Its appellate powers, 48. The question of its jurisdiction 
always open, 50-53. Will not respect its own void judgments, 50. Its 
jurisdiction exclusively appellate, 52. Cannot revise its own judgments at 
a subsequent term, 51-56. Its revocation of its mandate void, 39-59. Its 
mistake about the Stanton order, 65, 66, 69, 70. About the second appeal, 
70-86, 90-100. 

Cox, Secretary of Interior, McGarrahan's suit against, 92, 93. 

Crosby, E. O., his action wholly immaterial, 32, 33, 37, 103. 

Cultivation not a necessary condition to a Mexican grant, 32, 33. No author- 
ity in the national law or regulations for inserting such condition, 31. 

Evidence not to be reviewed as on a bill of exceptions, 18. Not to be viewed 
with microscopic lenses, 18. Nor by the strict rules of the common law, 18. 
Objections to, should be made in the court below, 18, 36. The opinions of the 
Supreme Court in other cases not to affect the credibility of witnesses, 19. 
Nor will the frauds of the governor in other cases, 19. Record evidence of 
grants, 28, 29. These only directory, 29. Parol evidence allowed, 29. 
Rules as to, 29, 30. May be used, if part of the archive be found, 29. The 
use of fraudulent evidence exposed as to the Yorbo expediente, 31, 32. No 
objection was taken to the evidence in the Gomez case, 30. Sufficient to 
satisfy the commissioners, 30. Objections must be taken below, 36. 

Expediente. A complete expediente defined, 20. Distinguishes between the 
concession and final grant, 20. Why this is necessarily so, 20. The date 
of the concession constitutes the inviolable law of property, 20. Many anal- 
ogies in every government to this rule, 20-21. 

Facts of the case. Shaws statement vouched for. 

Forged or fiotitiotjb grant. No such charge to be urged for the first time in 
the Supreme Court, 18, 19, 36. 

Fraui or fabricated title not before the court, if the point was not 

i below, 19, 20, 36. Suspicion of defense to be made below, Id. 
Black - statement as to the Gomez grant wholly unsupp6rted, 74, 108. 

Gomez, Vicente, services of, and why his grant would have been confirmed, 8. 



119 

Gomez cases, summary of what the Supreme Court did decide in the, 3, 4, 70- 
100. 

Good faith. The New Idria Company are not possessors in good faith, 96-100, 
107-111. 

Hardship. The case of hardship, which would entitle McGarrahan to relief, 
as admitted by Evarts, 4. 

Hidalgo, treaty of, compared with the treaties of Florida and Louisiana, 5. 
Quoted to show that it includes property of every kind, 5. As interpreted 
by the act of 1851, 5. The law of 1851, governing the commissioners, 
quoted, 5. Such treaties, as interpreted by the law of nations and the de- 
cisions of the Supreme Court, 5- 25. 

Immaterial facts, eight, stated and defined, 105-106. 

Inchoate titles need confirmation, perfect titles did not, 9. Rule in Texas 9- 
13. Both perfect and imperfect titles had to be confirmed under the treaty 
of Guadalupe Hidalgo, 16, 17. Hardship of this rule, 17. 

Jimeno's Index, not even & prima facie evidence against a title, 93. 

Juridical possession. None necessary under the colonization law, 29. 

What was, 34. Could only be made after survey, 35. Not essential to title, 
only a link of proof, 35. Cases reviewed, 34-36. 

Jurisdiction. When an executive officer decides a matter within his jurisdic- 
tion his action is conclusive of the right, 43-44. This proposition is true in 
regard to every tribunal when it has, jurisdiction, 44. If it has none its 
action is void, 44. Secretary of the Interior had jurisdiction, 44. And he 
acted before the Supreme Court took jurisdiction, 46. When the Supreme 
Court recalled its mandate it had no jurisdiction, 48. All patents subject to 
the want of jurisdiction, 46-48. 
When an appellate court may hear evidence against or for its jurisdiction, 49. 
Not to exercise original jurisdiction, 49. The Supreme Court has original 
jurisdiction in but two cases, 49. The question of jurisdiction always open, 
49-52. 
Appellate court has no jurisdiction over its own judgments, 52. Can hear no 
motion to recall its judgments after the term, 53-55. The question is open 
before Congress, 55-56. The Supreme Court had no power to recall its man- 
date, 56-60. 
The decision in the Gomez case, (23 How.) was in the exercise of original 

jurisdiction and without power, 56-58. 
The true remedy was by new appeal, 39-59. 

The Supreme Court had no jurisdiction of the second appeal, 72. Justice 
Clifford's mistakes as to, 73, 74. The second appeal was without, for want 
of citation, 84-88. Fourteen reasons why the Supreme Court had none, 
89-91. 

Kewen's Motion. No such motion was ever filed, 61, 63. 

Land Commission. Finding of, in the Gomez case, 30. Conclusive as to the 
evidence, 18, 19, 36. 

Land Commissioners. The rule by which they were governed, 5, 13. 

Law of 1851 a hard law, 18. Consequent leniency in the proofs, 18, 19. 

Mandamus, was the only remedy to force an appeal, 88. Admitted not to have 
been used because there was no appeal, 73, 88. 

Mandate. The power to recall the mandate in the Gomez case did not exist, 
48, 56. 

Material questions. The only two really material, 105, 106. 

McGarrahan. Defense of, against every charge made against him, 67, 71. 
The triumphant position of, as an honest man and a just claimant, 111, 115. 

Merits of the case. Comments on Justice Clifford's view, 91, 92. 

Mexican witnesses and pleople defended, 15, 16. Who attacks them, 13, 14. 

Mexicans. Compared with land robbers, 15, 18. 

Native Mexicans. Their right to lands without conditions, except as to quan- 
tity, 31. Nothing as to conditions in such grants in the law or regulations, 
32, 33. The insertion of the condition of cultivation not material, 32, 33. 



120 

The conditions applied alone to empresario and colonists' grants, 32, 33, 34. 
Fivmont, Yorbo, and Larkin's cases explained on this subject, 33. 

New Idria Mixing Company have no right to be heard to oppose the patent, 
96. Are not possessors in good faith, 96, 97. The land was reserved when 
the company entered, and is yet reserved, 97, 99. Have no vested right 
which Congress cannot control, 100, 101. Charges and specifications of 
their want of good faith. 107, 111. 

New trial could not be granted after the term, 73-76. Could only be granted 
for newly-discovered evidence, not on general charge of fraud, 76. No one 
has discovered any new evidence, 71. Order of Judge Ogier for, void, 73-76. 

Nunc pro tunc. The final decision or order for a decree determines the time 
for appeal. And a nunc pro tunc order dates back to the first date, 77-80. 

Ogier's return not reliable, 62, 63. 

Ord, the interest of, did not vitiate the judgment, 71, 72. Anwer of, to Justice 
Wayne's attack, 37, 56-58. Answer to Justice Clifford's attack, 71-77. 

Ord's appeal. Evidences of its truth, 64-68. Black acted upon it, 65. 

Paschal's Digest contains all the national colonization laws and notes of ex- 
planation, 9, 10. Defense of the book, 25. 

Perfect title defined, 10, 11, 12. "When no more to be done, 12. All land to 
be confirmed under the treaty of Guadalupe Hidalgo, 16, 17. Hardship of 
the rule, 17-19. Hence the liberality as to proofs, 18, 19, 36. 

Property. The thing protected under treaty of Guadalupe Hidalgo, 5. In- 
cludes property of every kind, 5. Commissioners and courts as to, to be 
governed by laws of nations and of Mexico in regard to, 5. Universal rule 
as to securing, 6, 7, 8. Why this property should be confirmed, 9, 10, 11. 
The necessity of confirmation even as to perfect tiltles, 16, 17. Hardship 
of the rule, 17, 18. Hence liberality of interpretation, 18, 19. The date of 
the concession constitutes an inviolable law for the ownership of property, 
20. This concession preceded the grant, 20, 21. Gomez had this inviolable 
property without the lost grant, 23. Necessity of a patent to, 2-4. The 
colonization laws only extended to the vacant property, 25. The forfeiture 
of the Mexican property not to be urged, 18, 19. That property to be pro- 
tected, 18, 19. The right to, does not depend upon the nice rules of legal 
formality, 19. Party not to be deprived of his property by an accident 
which he could not prevent, as loss of evidence, 29. 

Political Power. The confirmation of title* is purely a political power, 9. It 
belongs to the legislature, 9. 

Propositions established, The, 11. By the law and the facts, 106-111. 

Public lands. Congress has exclusive power over, 1. Great error of the Su- 
preme Court in regard to, 1-3. Different system of disposing of, in different 
countries, 20. 21, 22. The concession is the equitable property in all coun- 
tries, 21, 22. This creates the rule of imperfect titles, 23. Power of Con- 
gress complete over, until patent, 99-102. When reserved from appropria- 
tion, 96-102. 

Rehearing. A court cannot hear a motion to set aside its judgment after the 
term, 52-55. 

Rehearing in Supreme Court could not be except on motion of one of the 
judges who concurred, 89. The, in the Gomez case was without jurisdiction 
and" void, 40-56. 

Reservations. Lands reserved not subject to ordinary appropriation, or to the 
mining laws, 96 to 102. 

Revolutions. The laws of nations and of America, as to the rights of the con- 
quered inhabitants to their property, 6, 7, 8, 9, 10, 11, 12, 13, 14. The con- 
quered inhabitants retain all their rights, 6, 7. Whatever title would have 
become perfect under the former government must be confirmed, 7-14, 36. 
inchoate titles needed confirmation, 9. And all under the treaty of 
Guadalupe Hidalgo do, 16, 17, 36. 

Secretary of the Interior, decisions of the, in relation to the patent conclu- 



121 

13, 1 1. Acted bef re the Supreme Court took jurisdiction, 
against the, 92, 03. 
tx. finding. Thai G» factory proof of the existence and Lobs 

of the grant, 30. Tins was conclusive upon the Supreme Court, Nelson & 
Fields, I s -. 19. Justice Nelson as late as 1870,36. Objei 
before them cannot be u 
om motion, h was oever filed or made a part of the record. 63,64. 

Its influi I ustice 

Wayne, 65. 
[.ation concerning the Becond appeal, 41, 83. 

Court. The cases not brougnl by bill of exceptions, 18, 19. Evi< 
rough! into review, 18. I I liberal principles, 18, 

19 36. T esented in the court below not subject to review, 18, 

Former opinions in regard to witnesses not before the court, 19. 
If fraud or forger 1 below, not before the court, 49. Nor the insuf- 

ficiency of proofs, L9, 20. Rule adhered to in the very last case, 36. Ets 
total want of jurisdiction in the Gomez cases, 56-58, 70-100. 

law in regard to, as defined by Hon. Jeremiah Black, 94-96. 
Texas confirmations. Liberal rules as to, 9, 10-13. Succeeded to the d 

of the United States by being struck out of the treaty of Guadalupe 
Hidalgo, 13,14. The liberality of performance, 13,14. 
Transcript. What alone belongs to a, 09. .The Stanton motion could not be- 
long to the, 69, 70. 
Vacat] of appeal. Hie :1. False history of, 73, 81-83. 

i.d rights. The New Idria Company have no, 99-102. 
Void judgment. If the court had no jurisdiction, the judgment is a nullity 
■I: J ' 

Ximeno index. Not prima facie evidence against a title, 93. 

Owed to bear a false date, 12, 13, 14. Proved by the Commis- 
sioner of the General Land Office, 31. It was not only antedated two years, 
but wanted Governor Pico's signature, 31, 111. 

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